Atlas Cycle Industries Ltd. Vs. the Assessing Authority and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 730. strong reliance was placed on the following provisions of section 68(a) of the haryana act:s.c. mital, j.1. the question for determination in this writ petition and c. w. no. 2927 of 1974 is, whether the order (annexure p2) of the assessing authority refusing to refund the sales tax paid by the petitioner, is unsustainable ?the undisputed facts are that the petitioner supplied certain goods to its employees on 'no-profit-no-loss' basis. the petitioner's pleas that the transaction was not 'sale', as defined in the punjab general sales tax act of 1948, as applicable to haryana, was rejected by the taxation authorities. however, the petitioner succeeded in getting the following question referred under section 22(2) of the act to this court :whether the supply of goods to its employees by the assessee-company on hire and purchase basis without profit-motive is liable to sales tax ?a division bench of this court answered the question in favour of the petitioner, vide atlas cycle industries ltd. v. state of haryana [1972] 29 s.t.c. 730. thereafter, the petitioner moved the taxation authorities for the refund of the sales tax deposited by it. during the pendency of the refund proceedings, the punjab act abovesaid was repealed by the haryana general sales tax act of 1973 (hereinafter referred to as the haryana act). the haryana act amended the definition of 'dealer' retrospectively with effect from 7th september, 1955, and enacted section 2(c) in the following terms :'dealer' means any person including a department of government who in the normal course of trade, whether with or without a profit-motive, directly or otherwise, whether for cash, deferred payment, commission, remuneration or other valuable consideration, purchases, sells, supplies or distributes any goods in the state, or imports into or exports out of the state, any goods, irrespective of the fact that the main place of business of such person is outside the state and where the main place of business of such person is not in the state, includes the local manager or agent of such person in the state in respect of such business.challenge to the validity of the amendment abovesaid was overruled by a division bench of this court in birla cotton mills ltd. v. state [1979] 43 s.t.c. 158 (c. w. no. 1648 of 1976 decided on 9th august, 1978).learned counsel for the petitioner relied on the following provisions of section 65(1) of the haryana act :(1) the punjab general sales tax act, 1948 (hereniafter referred to as the repealed act), is hereby repealed :provided that such repeal shall not affect the previous operation of the repealed act or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this act, as if this act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due under the repealed act, at the commencement of this act, may be recovered as if they had accrued under this act.accordingly, it was urged that the division bench decision of this court, now reported as atlas cycle industries ltd. v. state of haryana [1972] 29 s.t.c. 730, being final, the retrospective amendment of the term 'dealer' did not in any way affect the right of the petitioner to get the sales tax refunded. on the other hand, the learned advocate-general contended that the finality of an order passed before the coming into force of the haryana act, as envisaged by section 65(1), was subject to the retrospective operation of the haryana act which also validated the order set aside by atlas cycle industries ltd. v. state of haryana [1972] 29 s.t.c. 730. strong reliance was placed on the following provisions of section 68(a) of the haryana act:notwithstanding any judgment, decree or order of any court or tribunal or other authority to the contrary- (a) any levy, assessment, reassessment or collection of any amount by way of tax or penalty made or purported to have been made and any action or thing taken or done or purported to have been taken or done before the commencement of this act in relation to such levy, assessment, reassessment or collection under the provisions of the repealed act, shall be deemed to be as valid and effective as if such levy, assessment, reassessment, collection or action or thing is made, taken or done under this act.2. with a view to further justify the impugned order refusing refund of the sales tax, the learned advocate-general cited hira lal rattan lal v. sales tax officer, section iii, kanpur [1973] 31 s.t.c. 178 at 183 (s.c.), wherein their lordships of the supreme court dealt with the retrospective legislation, viz., the u. p. sales tax (amendment and validation) act, 1970 (hereinafter referred to as the u. p. act), validating certain transactions. at page 183 of the reports, their lordships dealt with the objects and reasons of the said u. p. act, which, inter alia, stated :these judgments have created legal difficulties in the assessment and collection of tax on the aforesaid commodities. besides, the dealers have started applying for the refund of tax already collected on these commodities. this will have serious repercussions on the state's revenue. accordingly, it is proposed to amend sections 3-a and 3-d to provide for the levy of tax on the aforesaid commodities as seperate items. it is also proposed to validate the past levy, assessment and collection of tax on the above commodities....3. challenge to section 7 of the u. p. act validating earlier levies, notwithstanding the previous judgments to the contrary, was rejected by their lordships. respectfully following hira lal rattan lal's case [1973] 31 s.t.c. 178 at 183 (s.c.), the present petition fails and the same is hereby dismissed. no order as to costs.s.s. sandhawalia, c.j.4. i agree.