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1. This judgment shall dispose of Civil Writ Petition Nos. 17178, 17188, 17696, 18898, 19073, 19132 and 20031 of 2003, 207 and 4415 of 2004 as all these cases involve similar question of law consequent to enactment of the Haryana Value Added Tax Act, 2003, w.e.f. April 1, 2003. However, for facility of reference, the facts are being taken from Civil Writ Petition No. 17178 of 2003.

2. The petitioner is a registered dealer under the Haryana General Sales Tax Act, 1973 (for short "the HGST Act") and is engaged in the business of purchase of paddy. For the assessment year 1998-99, the Assessing Authority framed the assessment under the HGST Act and raised an additional demand on account of purchase tax calculated under Section 6 of the HGST Act. The petitioner filed appeal along with an application under Section 39(5) of the HGST Act for entertaining the appeal without prior payment of tax on account of financial hardship on March 3, 2003. However, before the appeal filed by the petitioner could be entertained by the learned Appellate Authority, the HGST Act was repealed by virtue of Section 61(1) of the Haryana Value Added Tax Act, 2003 (for short "the HVAT Act"). It was then alleged that under the HVAT Act, the appeal filed by the petitioner is required to be entertained without any condition of pre-deposit of tax assessed, therefore, the appeal filed by the petitioner is required to be heard and decided under Section 33 of the HVAT Act. No payment of tax can be insisted upon as a condition precedent for hearing of appeal but still the learned appellate authority vide order dated April 2, 2003 ordered the payment of tax assessed in six monthly instalments as a condition precedent for hearing of appeal. The said order of the learned appellate authority was challenged by the petitioner in appeal before the Haryana Tax Tribunal (for short "the Tribunal"). The learned Tribunal dismissed the appeal holding that there is no implied repeal of provisions of Section 39(5) of the HGST Act and the appeal is to be entertained only under the provisions of Section 39(5) of the HGST Act. It is the said order which is impugned in the present writ petition.

3. In the written statement, it has been pleaded that tax liability related to the period when erstwhile HGST Act was still in existence and has not been repealed. Reference was made to the decision of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 to state that where any right or liability arises under a particular Act, the remedy available under that Act has to be availed of. Reference was also made to the decision of the Supreme Court in the case of Manphul Singh Sharma v. Smt. Ahmedi Begum (1994) 5 JT 49 (SC) to state that when a repeal is accompanied by a fresh legislation on the same subject, the provisions of the new Act will have to be looked into to determine whether and how far the new Act projects or keeps alive the old rights and liabilities. It has been stated that the provisions of Sub-section (2) of Section 61 of the HVAT Act envisages the procedure regarding entertainment of pending appeals, applications, revisions or other proceedings made or preferred to any authority under the old Act and pending at the commencement of the HVAT Act. It has been pointed out that since the order of assessment has been made before coming into operation of the HVAT Act, therefore, the right of appeal is to be exercised in terms of the HGST Act. Reliance was also placed upon Section 4 of the Punjab General Clauses Act, 1898 (as applicable to the State of Haryana).

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed."

5. The learned Tribunal in the impugned order has relied upon Manphul Singh Sharma's case (1994) 5 JT 49 (SC) and India Tobacco Co, Ltd. v. Commercial Tax Officer, Bhavnipore [1975] 35 STC 95 (SC) to hold that the HGST Act (Haryana Act No. 20 of 1973) has not come to an end altogether with its repeal by the HVAT Act (Act No. 6 of 2003). Notwithstanding the repeal of the HGST Act, since the tax has been assessed under the HGST Act, the appeal is under the aforesaid Act alone.

17. Mr. Ashok Aggarwal, learned Advocate-General, Haryana, vehemently argued that there is no express provision under the HVAT Act in respect of continuation of proceedings under the HGST Act. Section 61(2) of the HGST Act, only defines the authorities constituted under the HVAT Act as competent to hear and decide the pending application, appeal, revision or other proceedings. Sub-section (2) of Section 61 of the HVAT Act deals with only proceedings pending at the commencement of this Act which are to be transferred to and disposed of by the corresponding authorities constituted under the new Act. Even by implication, it cannot be said that the provisions of the new Act, i.e., the HVAT Act have substituted the provisions of the HGST Act with retrospective effect. In the absence of an express enactment, the provisions of the new Act cannot apply to the proceedings pending on the date when the new Act came into force. Reliance was placed upon judgment of the Supreme Court in the case of Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114, wherein it has been held that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. The right of appeal vested in a party when proceedings are first initiated in, and before a decision is given by the inferior Court. Such pre-existing right of appeal is not destroyed by an amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that pre-existing right of appeal continues to exist must necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. The old Act continues to exist for the purpose of supporting the pre-existing right of appeal. The said case arose out of the Central Provinces and Berar Sales Tax Act, 1947, wherein originally right of appeal was given on the payment of tax or penalty or both as admitted to be due from assessee. However, the provisions of Section 22 of the said Act were amended on November 25, 1949 when as a condition precedent to appeal, the appeal was required to be accompanied by satisfactory proof of payment of tax in respect of which the appeal had been preferred.