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PETITIONER: STATE OF MADRAS

       Vs.

RESPONDENT: LATEEF HAMID & CO.

DATE OF JUDGMENT02/09/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N.

CITATION:  1972 AIR 1781            1972 SCR  (1) 577  1971 SCC  (3) 560  CITATOR INFO :  D          1973 SC1387  (5)

ACT: Madras  General  Sales  Tax Act 1   of  1959  s.  31-Section conferring  power  on Appellate  Assistant  Commissioner  to enhance assessment Power to enhance assessment under  Madras General  Sales Tax Act, 1939 exercisable by  Commercial  Tax Officer-Appellate  Assistant  Commissioner  hearing   appeal under  s.  31  of 1959 Act whether  can  exercise  power  of enhancement in respect of assessment year 1958-59 which  was governed  by  1939  Act-Whether any right  or  privilege  of assessee  under  1939 Act affected if power  of  enhancement exercised by Appellate Assistant Commissioner under s. 31 of 1959 Act.

HEADNOTE: The Appellant was a dealer in hides and skins at Madras.  Up to  March  31,  1959 sales tax on dealers in  the  State  of Madras was leviable under the Madras General Sales Tax  Act, 1939.   The  appellant’s turnover for  the  assessment  year 1958-59  thus  stood charged with liability to  pay  tax  as leviable  under the 1939 Act.  The 1939 Act was repealed  by the Madras General Sales Tax Act, 1959 which came into force on  April 1, 1959.  The appellant was assessed for the  year 1958-59  on  March 24, 1961.  By an order dated  August  16, 1962 the Appellate Assistant Commissioner while disposing of the  appeal against the said assessment order  enhanced  the assessment under power conferred on him by s. 31 of the 1959 Act.   The Tribunal accepted the contention of the  assessee that  the Appellate Assistant Commissioner had no  power  to enhance  the  assessment.  The High Court in  revision  held that since under the 1939 Act the appellate authority  while exercising its appellate powers had no power to enhance  the assessment and the said immunity or protection was a  vested right  in the assessee, the same not having been taken  away either  expressly  or by necessary implication by  the  1959 Act,  the  Appellate Assistant Commissioner could  not  have enhanced  the assessment. it further held that the  immunity or protection was a right or privilege protected by s. 61(1) of  the  1959 Act as amended in 1963,  which  amendment  was retrospective in its operation.  In appeal to this Court  by certificate,

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HELD:     (i) In the matter of assessment the purpose of the 1939 as well as the1959 Act is identical.  That purpose was and is to see that neither theassessee is over assessed nor the State is deprived of   the Revenue towhich   it is entitled.  Under the 1939 Act an aggrieved assessee could first  appeal  to the Appellate Authority and  then  to  the Tribunal.   Further  he could on questions of law go  up  in revision  to  the  High Court.  Rule  13(1)  of  the  Madras General Sales Tax Rules, 1939 prescribed that subject to the provisions  of  s. 11 any person aggrieved by  any  original order  passed  by the Assistant Commercial Tax  Officer  may appeal to the Commercial Tax Officer of the District.   Thus the  Commercial  Tax  Officer had both  the  powers  of  the appellate authority as well as the, special powers conferred on  him under s. 12(1) of the 1939 Act.  By the exercise  of those  two powers he could have confirmed, altered,  amended or  enhanced  the assessment made.  Under the 1959  Act  the Appellate Assistant Commissioner who primarily took over the quasi-judicial  functions of the Commercial Tax Officer  was conferred with power not only to confirm, vary, or annul the assessment  but  also the power to enhance  the  assessment. The power conferred on him under 3-1-3Sup.C.I./72 578 s.31  of  the  1959  Act combines  to  an  extent  both  the appellate power as well as the special power the  Commercial Tax  officer had under s. 11 and s. 12(1) of the  1939  Act. Hence the changes effected by the 1959 Act in the  machinery sections do not touch the substance of the matter.  The 1959 Act  merely  simplified the procedure without  touching  the Substance of the right of the parties. [582C-583A] No assessee has any vested right in the procedure prescribed under the 1939 Act.  So long as the new procedure laid  down in  the 1959 Act ,does not interfere with any of his  vested rights, an assessee has no right to claim that his case must be dealt with under the provisions of the repealed Act.   It is  well  settled that the new procedure prescribed  by  law gover ns  all  pending cases.  The assessee in  the  present case  filed its appeal under s. 31 of the 1959 Act  and  not under  s. 11 of the 1939 Act. its right of appeal under  the 1959 Act does not take away in any manner .any of its vested rights under the 1939 Act [585 B-C] The appeal must accordingly he allowed. Deputy Commissioner of Commercial Tax, Madras Division v. N. Balasundaram & Co. 14, S.T.C. 996, disapproved. Observations  contra  in Deputy Commissioner  of  Commercial Taxes, Madras Division v. Sri S. Swami & Co., 13 S.T.C. 468, held incorrect. (Since it was held that no vested right of the assessee  was infringed  by the provisions of the 1959 Act the  Court  did not find it necessary to consider the meaning of the  words ’any right privilege..... accrued......under the Act’ in  s. 61 (1) (ii) (c) of the Act or to examine the scope of s.   61(2) thereof]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2186  of 1968. Appeal from the judgment and order dated July 3, 1967 of the Madras High Court in Tax Case No. 250 of 1964 (Revision  No. 172). S. T. Desai and A. V. Rangam, for the appellant. R.  K. P. Shankardass, R. Vasudeva Pillai, P. Keshava Pillai

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Rajiv Sawhney, for the respondent. The Judgment of the Court was delivered by Hegde,  J.  This  appeal  by  certificate  arises  from  the decision  ’of  the  High Court of  Madras.   It  raises  two questions  for decision viz (1) whether the High  Court  was right   in   its  opinion  that  the   Appellate   Assistant Commissioner of Commercial Taxes was incompetent to  enhance the  assessment of the assessee, the respondent, herein  and (2)  whether the High Court was justified in’  holding  that the  additional  exemptions  granted by  the  Tribunal  were justified by the evidence on record. There  is no merit in the second contention.   Therefore  it will  ,be convenient to dispose it of even before  going  to the facts of the case.  The assessing officer as well as the Appellate Assistant 579 Commissioner  of Commercial Taxes disallowed the two  exemp- tions asked for by the assessee on the ground that there was interpolation  in  the,  relative  documents  covering   the turnover.   The  Tribunal  reversed that  finding  of  those authorities  and  allowed  the  exemptions  asked  for.   It appears from the order of the Tribunal that it proceeded  on the basis that there was no ;Interpolation.  This finding of the  Tribunal is essentially a finding of fact and hence  we Will not be justified in interfering with that finding  and more  so  as the High Court has declined to  interfere  with that finding. This  takes us to the real controversy in the appeal  namely whether  the Appellate Assistant Commissioner had  power  to enhance  the assessment of the assessee. The assessee is  a dealer    in  Hides  and Skins at Madras. We  are  concerned herein with its     assessment  for the year  1958-59.  That assessment was made on   March 24, 1961. By his order  dated August 16, 1962, the     Appellate  Assistant   Commissioner enhanced the assessment of    the  assessee while  disposing of the appeal by the assessee. Until    March   31,    1956, sales tax was being levied on dealers in the State     of Madras  under  the provisions of the Madras Sales  Tax  Act, 1939 (to be hereinafter referred to as the "1939 Act").  The assessee’s turnover for the year 1958-59 stood charged  with the  liability  to pay tax as leviable under the  1939  Act. The 1939  Act  was repealed by the Madras General Sales  Tax Act, 1959      (to  be hereinafter referred to as the  "1959 Act"). That Act     came  into  force on April 1,  1959.  As seen earlier the assessee     was  assessed after  that  Act came  into force. The assessee filed its appeal under S.  31 of that Act and the Appellate Assistant      Commissioner dealt with that appeal under that provision.      Aggrieved  by   that order, the assessee  took  up  the matter in      appeal  to Tribunal. The  Tribunal  following the decision of the      Madras   High   Court   in   Deputy Commissioner of Commercial    Taxes, Madras Division v.  Sri Swami and Company,(1) accepted     the  contention  of   the assessee. As against that decision, the State     of  Madras went up in revision to the High Court under s. 38 of   the 1959 Act. That petition was dismissed. Hence this appeal.      The High Court has opined that under the 1939 Act,’ the      appellate  authority  while  exercising  its  appellate powers could not    have  enhanced  the  assessment  of  the assessee. That was an    immunity or protection afforded  to the assessee under the 1939   Act.   Such  an  immunity   or protection was a vested right of the    assessee.  The  same having not been taken away either expressly  or by necessary implication   by  the  provisions  of  the  1959  Act,   the Appellate Assistant Commissioner could not have. enhanced

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(1)13, S.T.C. 468. 580 the  assessment.   It  further held that  that  immunity  or protection of the assessee, is protected by s. 66(1) of  the 1959   Act   as  amended  in  1963,  which   amendment   was retrospective in its ,operation. The turnover of the assessee during the year 1958-59  became charged  with liability to pay sales-tax under the 1939  Act as and when the assessee effected sales and the total sales- tax  liability  of the assessee for that year  became  fixed Under  the same Act on March 31, 1959.  Hence  the  charging section in the 1959 Act is not relevant for determining  the liability of the assessee.  Herein we have only to  consider the  effect  of  the change  in  the  machinery  provisions. Before  enhancing  the assessment  the  Appellate  Assistant Commissioner  had given opportunity to the assessee to  show cause  against  the  proposed  enhancement.   The  Appellate Assistant  Commissioner  rejected  the  contention  of   the assessee that he had no power to enhance the assessment,  as the power to, enhance assessment conferred on him by. s. 3 1 of the 195 9 Act was inapplicable to the proceedings  before him. We shall now examine the relevant provisions of the 1939 Act and the 1959 Act.  We shall first take up the material  pro- visions  in  the  1939  Act.   Section  2(a-2)  defines  the expression  "assessing  authority"  as  meaning  any  person authorised  by the State Government to make  any  assessment under  the  Act The expression "Commercial Tax  Officer"  is defined in s. 2(a-3) as meaning any person appointed to be a Commercial   Tax   Officer  under  s.   2-B.    The   Deputy Commissioner  is defined in S. 2(b-1) as meaning any  person appointed  to be a Deputy Commissioner of  Commercial  Taxes under s. 2-B.  Section 2-B empowers the State Government  to make  appointments  of  as  many  Deputy  Commissioners   of Commercial  Taxes and Commercial Tax Officers as they  think fit for the purpose of performing the functions respectively conferred  on  them  by or under the  Act.   The  expression "Appellate Tribunal" is defined in s. 2(a-2) as meaning  the Tribunal  appointed  under  s.  2-A,  which  empowered   the Government to appoint a Tribunal consisting of three members to  exercise  the  functions  conferred  on  the   Appellate Tribunal  by  or  under the Act.  Section  II  provided  for appeal  by the assessee objecting to an assessment  made  on him  under s. 9(2) within the prescribed period.  Section  9 prescribed  the  procedure to be followed by  the  assessing authority.   Section 12(1) conferred certain special  powers on the Commercial Tax Officer.  It said that "the Commercial Tax officer may               (i)   suo moto or               (ii)  in cases in which an appeal does not lie               to him under section 11, on application,  call               for and’               581               examine the record of any order passed or pro-               ceeding recorded under the provisions of  this               Act by any officer subordinate to him, for the               purpose  of  satisfying  himself  as  to   the               legality  or propriety of such order or as  to               the  regularity  of such proceeding,  and  may               pass  such  order with respect thereto  as               he thinks fit." The  application under s. 12 (1) (ii) could have  been  made even by the assessing authority.  It may also be  remembered ’that the Commercial Tax Officer was one of the  authorities charged  with the duty to see that no taxable turnover  went

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untaxed.  The power under S. 12(1) could have been exercised within  three  years from the date the assessee  was  served with assessment order.  Power under S. 12(1)(ii) could  have been exercised by the Commercial Tax Officer  simultaneously with the exercise of his appellate powers under s. 11 (1) Section  12(2) conferred special powers on the  Deputy  Com- missioner  to call for and examine any order  or  proceeding recorded under the provisions of the Act satisfying  himself as  to the legality or propriety of that order or as to  the regularity  of such proceeding and may pass such order  with respect thereto as he thinks fit.  This power he could  have exercised  within  four  years from the date  on  which  the assessment order was communicated to the assessee. Section 12-A provided for an appeal by an assessee objecting to  an  order  relating  to his  assessment  passed  by  the Commercial  Tax  Officer whether on appeal under  s.  11  or under s. 12, sub-s. (1) or by the Deputy Commissioner  under s.  12, sub-s. (2) subject to certain conditions with  which we are not concerned in this case.  The assessee as well  as the  Deputy Commissioner were conferred with power  to  move the  High Court under s. 12-B within the  prescribed  period against  the order of the Appellate Tribunal on  the  ground that  order either decided erroneously a question of law  or it  failed  to  decide  the  question  of  law  arising  for decision. This  takes us to the relevant provisions in the  1959  Act. Therein  again  ’the assessing authority" is defined  in  s. 2(c)  as meaning any person authorised by the Government  or by any authority empowered by them to make assessment  under the  Act.   Against  the order of  assessment  made  by  the assessing authority an appeal by any person objecting to the assessment  lies  to the  Appellate  Assistant  Commissioner appointed under s. 28, sub-S. (3). Section 31  empowers the Appellate Assistant Commis- 582 sioner   to   confirm,  reduce,  enhance,,  or   annul   the assessment.   The  power  to  enhance  the  assessment   was conferred  on the Appellate Authority for the first time  by the   1959   Act.    Under  this  Act   also’   the   Deputy Commissioner’s  power  to  suo  moto  revise  the  order  of assessment is retained, subject to certain conditions.   Any person  objecting  to  the,  order  made  by  the  Appellate Assistant  Commissioner under s. 31(3) or against the  order made  by the Deputy Commissioner under s. 31 (1) can  appeal to the Appellate Tribunal.  Under s. 38 the assessee or  the Deputy Commissioner can take up a revision to the High Court either  on  the  ground  that the  Tribunal  has  decided  a question  of  law erroneously or it has failed to  decide  a question of law arising for decision. In the matter of assessment, the purpose of the 1939 as well as  the 1959 Act is identical.  That purpose was and  is  to see that neither the assessee is over-assessed nor the State is  deprived of the Revenue to which it is entitled.   Under the  1939 Act, an aggrieved assessee could first  appeal  to the  Appellate Authority and then to Tribunal.   Further  he could  on  questions of law go up in revision  to  the  High Court.  To protect the interest of the State, special powers were conferred on the Commercial Tax Officer as well as  the Deputy  Commissioner  of Commercial Taxes.   If  the  Deputy Commissioner  was  not satisfied with the  decision  of  the Tribunal on questions of law, he could have gone up in revi- sion  to the High Court.  Under the 1959 Act, the  procedure was  simplified  to some extent.   The  Appellate  Assistant Commissioner  who  primarily took  over  the  quasi-judicial functions  of the Commercial Tax Officer was conferred  with

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power not only to confirm, vary or annual the assessment but also  the  power  to  enhance  the  assessment.   The  power conferred on him under s. 31 of the 1959 Act combines to an extent both the appellate power as well as the special power the Commercial Tax Officer had under s. 11 and 12(1) of  the 1939 Act.  Hence the changes effected by the 1959 Act in the machinery  provisions  do  not touch the  substance  of  the matter.    Even  as  regards  the  time  within  which   the enhancement  of assessment can be made the change  excepting in  exceptional  cases is in favour of the  assessees.   The Commercial  Tax  Officer could have  exercised  his  special powers  under  s. 12(1) of the 1939 Act within  three  years from  the  date  the  assessment order  was  served  on  the assessee.    Under  the,  1959  Act,  he  can  enhance   the assessment  only during the pendency of the appeal  and  not thereafter.   Herein we are not concerned with  the  special powers of the Deputy Commissioner nor with the powers of the Tribunal  or  the High Court.  In our opinion  there  is  no basis  for  saying  that  the provisions  of  the  1959  Act relating  to  the determination of the assessment  are  more onerous  than  those in the 1939 Act.  The 1959 Act  in  our opinion merely, 583 simplified  the procedure without touching the substance  of the right of the parties.  No benefit that was available  to an assessee as regards the procedure, was taken away. by the 1959  Act, if we ignore the remote possibility of an  appeal pending before an Appellate, Assistant Commissioner for more than three years and that authority failing to exercise  his power  to enhance the tax within that period.  The  assessee before us cannot even have the benefit of such a contingency because  the  order of assessment in this case was  made  on March 24, 1961 and the appellate order was passed on  August 16,  1962.  In this case it cannot be said that  any  vested right of the assessee had been in fact affected by the  1959 Act. Now  we  shall go to S. 61 of the 1959 Act on the  basis  of which  the  Tribunal  and the High  Court  have  upheld  the contention  of the assessee.  Section 61 (1) to  the  extent material for our purpose reads :               "61(1).(i)  The Madras General Sales Tax  Act,               1939 (Madras Act IX of 1939), (hereinafter  in               this section referred to as the said Act),  is               hereby repealed.               (ii)The repeal of the said Act by clause (i)               shall not affect-               (a)   anything done or any offence  committed,               or  any  fine  or  penalty  incurred  or   any               proceedings  begun before the commencement  of               this Act; or               (b)   the  previous operation of the said  Act               or anything duly done or suffered  thereunder;               or               (c)   any  right,  privilege,  obligation   or               liability  acquired, accrue or incurred  under               the said Act or;               (d)   any   fine,   penalty,   forfeiture   or               punishment incurred in respect of any offence,               committed against the said Act; or               (e)   any  investigation, legal proceeding  or               remedy   in   respect  of  any   such   right,               privilege,   obligation,   liability,    fine,               penalty,    forfeiture   or   punishment    as               aforesaid;               and  any such investigation, legal  proceeding

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             or  remedy  may be  instituted,  continued  or               enforced   and   any   such   fine,   penalty,               forfeiture or punishment may be imposed, as if               this Act had not been passed.               (iii)Subject  to  the  provisions  of  clause               (ii),  anything  done  or  any  action   taken               including any appointment made,  notification,               notice   or  order  issued,  rule,   form   or               regulation  framed,  certificate,  licence  or               permit               5 84               granted, under the said Act shall be deemed to               have   been   done   or   taken   under    the               corresponding provision of this Act and  shall               continue  in  force  accordingly,  unless  and               until,  superseded  by anything  done  or  any               action taken under this Act.               (2)   Notwithstanding  anything  contained  in               sub-s.               (1)   any  application,  appeal,  revision  of               other proceeding     made or preferred to  any               officer or authority under the said  Act   and               pending at the commencement of this Act, shall               after such commencement, be transferred to and               disposed  of by the officer or  authority  who               would have had jurisdiction to entertain  such               application,   appeal,   revision   or   other               proceeding  under this Act if it had  been  in               force  on the date on which  any  application,               appeal, revision or other proceeding was  made               or preferred. The  rules  framed under the 1939 Act  (the  Madras  General Sales  Tax  Rules,  1939), provide for  the  appointment  of Assistant Commercial Tax Officers and the Deputy  Commercial Tax  Officers.   By his order dated September 15,  1939,  in exercise  of the powers conferred on him by cl. (a) of s.  2 and sub-ss.  1 and 2 of S. 14 of the 1939 Act, the  Governor of  Madras authorised the Assistant Commercial Tax  Officers to  exercise  the powers of the assessing authority  in  the case of dealers whose turnover does not exceed Rs.  20,000/- and Deputy Commercial Tax Officers to exercise the powers of an assessing authority in the case of dealers whose turnover exceeds  Rs. 20,000/-.  It is not necessary to refer to  the exceptional  cases  for  which  provision  is  made  in  the provisos  to cl. (1) of that order.  Rule 13(1)of the  Rules prescribed  that  subject  to the provisions of  s.  11  any person  aggrieved  by  any original order  of  an  assessing authority  may appeal to the Commercial Tax Officer  of  the District.  The proviso to that section permits the Board  of Revenue  to transfer an appeal pending before  a  Commercial Tax Officer to another Commercial Tax Officer for reasons to be recorded in writing.  But the usual appellate  authority is  the Commercial Tax Officer of the District.   Hence  the Commercial Tax Officer had both the powers of the  appellate authority  as  well as the special powers conferred  on  him under  S. 12(1) of the 1939 Act.  By the exercise  of  those two  powers,  he could have confirmed, altered,  amended  or enhanced  the assessment made.  The power conferred  on  the appellate  authority  under the 1959 Act is not  wider  than that  the  Commercial Tax Officer had under  the  1939  Act. Hence  the 1959 Act does not adversely affect in any  manner the right of appeal an assessee had under the 1939 Act.   If one probes into the grievance of 585 the  assessee  before  us, it would be obvious  that  it  is

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wholly  imaginary.  No assessee has any vested right in  the procedure prescribed under the 1939 Act.  So long as the new procedure laid down in the 1959 Act does not interfere  with any of his vested rights, an assessee has no right to  claim that his case must be dealt with under the provisions of the repealed  Act.   It is well settled that the  new  procedure prescribed  by  law  governs all  pending  cases.   As  seen earlier,  the assessee filed its appeal under S. 31  of  the 1959 Act and not under s. 11 of the 1939 Act.  But that is a minor  aspect.  What is of the essence is that his right  of appeal under the 1959 Act does not take away in any manner any of his vested rights under the 1939 Act. Inview  of what we have said herein before, it  is  not necessary for usto  consider  the meaning of  the  words "any  right, privilege .......... accrued............  under the  Act" in s. 61(1) (ii)(c).  We repeat that no  right  of the  assessee  was infringed by the provisions of  the  1959 Act.  In this view’ it is not necessary to examine the scope of  s.  61  (2)  of  the 1959  Act  about  which  there  was considerable argument before us. The decision under appeal is based on the earlier two  deci- sions of that High Court i.e. in Deputy Commissioner Commer- cial Taxes, Madras Division v. Sri Swami & Co.(1) and Deputy Commissioner  of  Commercial Taxes, Madras  Division  v.  M. Balasundaram  and Co.(2).  Hence it is necessary to  examine the  correctness of those decisions.  In Swami & Co.’s  case (supra)  the assessee was assessed by the Deputy  Commercial Tax Officer for its turnover for the year 1955-56 under  the 1939  Act.  The order or assessment was passed  on  December 15,  1956.   The  assessee  filed  an appeal  before   the Commercial  Tax  Officer on February 15, 1957.   During  the pendency  of  the appeal, the 1959 Act came  into  force  on April 1, 1959.  Thereafter the appeal was transferred to the Appellate  Assistant Commissioner.  The Appellate  Assistant Commissioner reduced the turnover of the assessee to certain extent.   Not  being  satisfied  with  the’  order  of   the Appellate  Assistant Commissioner, the assessee preferred  a further appeal to the Appellate Tribunal.  In the course  of the  hearing  of  the  appeal by  the  Tribunal,  the  State representative  filed a petition seeking enhancement of  the turnover  of the assessee on certain grounds.  The  Tribunal rejected  that plea holding that the assessee had  a  vested right to have his appeal disposed of under the provisions of the 1939 Act.  It may be noted that under the 1939 Act, only an assessee could have appealed to the Tribunal against  the order of the Appellate Assistant Com- (1) 13 S.T.C. 468. (2) 14.  S.T.C. 996. 586 sioner  but under the 1959 Act both the assessee as well  as the  Deputy  Commissioner  can  appeal  against  his  order. Aggrieved   by  the  order  of  the  Tribunal,  the   Deputy Commissioner  took  up the matter in revision  to  the  High Court.   The High Court allowed the revision  petition.   It held  that  the  Tribunal went wrong  in  holding  that  the petition  filed by the State representative for  enhancement of  the assessment was not maintainable.  In the  course  of its judgment the High Court observed               "The immunity or protection which the assessee               had  under  the  1939 Act so as  to  save  the               assessment  made by the Deputy Commercial  Tax               Officer, the primary assessing authority, from               being   enhanced  by  the  exercise   of   the               appellate power by the Commercial Tax Officer,               is a vested right, which cannot be  interfered

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             with  or in any way impaired having regard  to               the  specific  provision of S. 61 (1)  of  the               Madras  Act  1  of 195 9.  The  order  of  the               Appellate Assistant Commissioner only  reduced               the  turnover to the benefit of the  assessee,               and it is clear that there was no violation of               the vested right of the assessee by reason  of               the  said order.  The order of  the  Appellate               Assistant  Commissioner was passed  after  the               coming into force of the 1959 Act and on  that               date  the  assessee  had no  vested  right  to               prevent  an enhancement of his  assessment  by               the  future  appellate authority,  namely  the               Tribunal.  The Tribunal entertained an  appeal               at the instance of the assesses only under the               new Act as the order appealed against was  one               passed after the coming into force of the  new               Act, and by a Tribunal which functioned  under               the  new  Act.   It  is  impossible  for   the               assessee  to  maintain the position  that  any               order of the Appellate Tribunal enhancing  the               assessment  made  by the  Appellate  Assistant               Commissioner  would amount to  deprivation  of               their  vested  rights  or  violation  of   the               provisions of section 61 (1) of the 1959 Act." These observations appear to us to be somewhat  incongruous. As  seen earlier under the 1939 Act, the Revenue  could  not have  appealed  either against the order  of  the  assessing authority  or against that of the appellate  authority.   If the non-existence of the right of appeal on the part of  the Department is considered as an immunity or protection and if that immunity or protection is considered as a vested right, the  assessee will have that right both at the stage of  the appeal to the Appellate Assistant Commissioner as well as at the stage of the appeal to the Tribunal.  It is difficult to follow how the High Court was able to make a 587 dichotomy  as between the powers of the Appellate  Assistant Commissioner  and that of the Tribunal in that  regard.   If the  newly constituted Tribunal were clothed with wider  and larger powers as opined by the High Court, the same would be the case with the Appellate Assistant Commissioner.  In  our opinion, the true test to be applied to the case was whether in fact any vested right of the assessee had been taken away under the 1959 Act because of the enlargement of the  powers of  the first appellate authority or that of  the  Tribunal. As seen earlier, no real right of the assessee was infringed by the 1959 Act because of the enlargement of the powers  of those authorities. This  takes us to the decision in Balasundaram &  Co’s  case (supra).   This  case was decided by the  same  bench  which decided  Swami  &  Co’s  case.   Therein  the  assessee  was assessed  to  sales  tax under the  1939  Act.   During  the pendency  of its appeal to the Commercial Tax  Officer,  the 1959 Act came into force.  Its appeal was transferred to the Appellate   Assistant   Commissioner   who   enhanced    the assessment.  But on a further appeal,  the Tribunal came  to the conclusion that the Appellate Assistant Commissioner had no jurisdiction to enhance the assessment.  As against  that order,  the Deputy Commissioner of Commercial Taxes went  up in revision to the High Court.  The High Court held that the assessee  had a vested right at the time when the  1959  Act came  into force to prevent the Commercial Tax Officer  from enhancing  the  assessment  in  the  course  of  the  appeal preferred  by him.  However, there was always the  peril  of

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the  Commercial  Tax  Officer, who  was  also  the  revising authority,  revising  the  assessment to  his  prejudice  in exercise of his revisional power, but that peril effectively disappeared  when under the 1959 Act, the  revisional  power was  conferred  upon the Deputy Commissioner  of  Commercial Taxes  and  not upon the Appellate  Assistant  Commissioner. Therefore  the  interference  by  the  Appellate   Assistant Commissioner with the assessment order passed by the  Deputy Commercial  Tax Officer to the prejudice of the assessee  in the  purported exercise of his appellate power, was  clearly violative  of the assessee’s vested rights.  In our  opinion this  decision  proceeded on a wrong  basis.   The  question before  the High Court was whether there was a vested  right in  the assessee not to have his assessment enhanced,  under the  1939 Act and whether that vested right had been in  any manner infringed by the 1959 Act.  As seen earlier he had no such  vested  right  under the 1939 Act.  The  fact  that  a different  procedure  is prescribed under the 1959  Act  for enhancing   the   assessment  cannot  be  said  to   be   an infringement  of a vested right.  No one can have  a  vested right  in  a  mere  procedure.   We  are  of  opinion   that Balasundaram’s case (supra) was wrongly decided and some  of the observations 588 in  Swami  & Co’s case (supra) are not  correct  though  the decision in that case is not open to question. Mr.  S.  T. Desai, learned- Counsel for the  Revenue  placed strong  reliance on the decision of a Division Bench of  the Kerala High Court in Velukutty v. Kerala Sales Tax Appellate Tribunal,  Trivandrum and Ors. (1) Therein,  interpreting  a provision  similar to S. 61 (2) of the Act, the  High  Court came  to the conclusion that the clause "be  transferred  to and  disposed of by the officer or authority who would  have had  jurisdiction  to entertain such.  application,  appeal, revision or other proceeding under this Act, if it had  been in  force  on  the date on which  any  application.  appeal, revision  or  other proceeding was made or  preferred"  con- ferred   power  on  the  appellate  authority   to   enhance assessment.    The  correctness  of  this   conclusion   was contested  by  Mr.  Shankardass,  learned  Counsel  for  the assessee.  According to him that clause merely provided  for transference of the appeals pending .before the  authorities under  the  1939 Act to the authorities under the  1959  Act without  enlarging their powers.  In view of our  conclusion that  no  vested right of the assessee had  been  interfered with,   it  is  not  necessary  for  us  to  go  into   this controversy. For  the  reasons mentioned above, this appeal  is  allowed, orders of the High Court as well as that of the Tribunal are set  aside  and  the case is remitted to  the  Tribunal  for disposal  :according  to law.  In the circumstances  of  the case  we direct the parties to bear their own costs both  in this Court as well as in the High Court. G.C.                     Appeal allowed. (1) 20 S.T.C. 28. 589