JUDGMENT
Veeraswami, J.
1. This tax case raises the question of jurisdiction of the Appellate Assistant Commissioner of Commercial Taxes to enhance the turnover in an appeal before him by the assessee aggrieved by an order of assessment made prior to the date on which the Madras General Sales Tax Act, 1959, came into force. The petitioner, as a dealer in hides and skins at Madras, was assessed to tax under the Madras General Sales Tax Act, 1939, for the year 1958-59. The assessment order was dated 24th March, 1961. The Madras General Sales Tax Act, 1959, repealed the earlier Act and commenced to operate from 1st April, 1959. Disputing the turnover of Rs. 2,91,187.95, the assessee filed an appeal in respect of it before the Appellate Assistant Commissioner of Commercial Taxes, who is, by Section 31 of the new Act, constituted as the appellate authority. This officer found a case for enhancement of the turnover, and, after notice calling for objections, enhanced the turnover fixing it at a sum of Rs. 19,56,500. He overruled the assessee’s contention that he had no jurisdiction to enhance. The assessee, in his further appeal to the Tribunal under Section 36 of the Act, however, succeeded on that point; the Tribunal being of the view that, as held in Deputy Commissioner of Commercial Taxes v. Sri Swami and Company [1962] 13 S.T.C. 468 the assessee had a vested right under the earlier Act against enhancement of turnover by the appellate authority and that, therefore, the order of the Appellate Assistant Commissioner enhancing the turnover was illegal. The State has filed the tax case. In addition to this point, there is another contention for the revenue. The Tribunal, differing from the authorities below, held that the assessee was entitled to exemption in respect of two items of turnover. The first two authorities, in respect of this matter, proceeded on the basis that there was an interpolation in the relative documents covering the turnovers. Before the Tribunal, no question of interpolation would appear to have been argued for the revenue. We say so because the Tribunal’s order is silent about it. In the grounds in the tax revision case, it has not been stated that any argument was addressed for the revenue before the Tribunal but the same has not been considered by it. In view of this, we do not think that we can give the revenue a second opportunity to argue the point before the Tribunal, and it is a matter of fact which we cannot investigate ourselves.
2. On the question of jurisdiction, there has been a number of citations, all of which pertain to a time before Madras Act 10 of 1963 was enacted, which thoroughly recast Section 61 and substituted it by an entirely new section. Under the old Act, an appeal lay to the Commercial Tax Officer from an order of assessment and a further appeal to the Sales Tax Appellate Tribunal. These appeals could be preferred only by the assessee and not by the revenue. Where no appeal had been filed and the time for filing had expired, the Commercial Tax Officer, above him the Deputy Commissioner of Commercial Taxes and at the top the Board of Revenue were each invested with powers of revision which could be exercised on an application or suo motu. It was settled by decisions of this Court that in the appeals filed by an assessee the relative appellate authority had no power to enhance theturnover. If the revenue felt that such a course was necessary, it could do so through re visional powers entrusted to these officers or body as were mentioned by the earlier Act. There is no controversy before us that the assessee’s right to file an appeal and a further appeal under the earlier Act is a vested right. Such a right becomes vested in the assessee, the moment he filed his return which commenced the assessment proceedings-vide Sales Tax Officer v. Hanuman Prasad [1967] 19 S.T.C. 87. That it is a vested right of the assessee has also been recognised by this Court in Deputy Commissioner of Commercial Taxes v. Sri Swami and Company [1962] 13 S.T.C. 468 at 470 and Deputy Commissioner of Commercial Taxes v. Balasundaram and Company [1963] 14 S.T.C. 996. In Deputy Commissioner of Commercial Taxes v. Sri Swami and Co. [1962] 13 S.T.C. 468 at 470 while the appeal filed by the assessee under the earlier Act before the Commercial Tax Officer was pending disposal, the new Act came into force; and the appeal was, therefore, transferred to the Appellate Assistant Commissioner. The assessee got a limited relief in the appeal but, not being satisfied with it, preferred a further appeal to the Tribunal but without success. This appeal, eventually, led to an unexpected result for the assessee. In the appeal before the Tribunal, the State Representative took out an application for enhancement of the turnover, but this was refused by the Tribunal on the ground that it had no power to enhance. The petition filed by the State in this Court was allowed. This Court, in one part of its judgment, 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 with or in any way impaired having regard to the specific provision of Section 61(1) of the Madras Act 1 of 1959.
3. But having said that, the Court was of the view:
We cannot accede to the contention of the learned counsel for the respondent that any vested right accrued to the assessee on the date of the first assessment order by the Deputy Commercial Tax Officer ensuring against further assessment at the instance of the State by any appellate authority…We have no doubt that the assessee did not acquire any vested right on the date of the assessment order of the Deputy Commercial Tax Officer to prevent future legislation except to the extent of the immediate appellate authority to which he can resort to for getting relief against the assessment not putting him in a position worse than that which he came to occupy by reason of the order of assessment. This vested right which he had in the present case was in no way affected and the order of the Appellate Assistant Commissioner which was passed after the commencement of the new Act, did not certainly clothe the assessee with any further vested right enabling him to resist enhancement by the Tribunal.
4. The reason for this view, in the words of this Court, appears to be this :
The Tribunal entertained an appeal at the instance of the assessee 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.
5. Deputy Commissioner of Commercial Taxes v. Balasundaram and Company [1963] 14 S.T.C. 996 was also a case in which an appeal pending before the Commercial Tax Officer was transferred to the Appellate Assistant Commissioner under Section 61(2) of the new Act. This officer enhanced the turnover while disposing the appeal. The same Division Bench which decided Deputy Commissioner of Commercial Taxes v. Sri Swami and Company [1962] 13 S.T.C. 468 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 but there was at the same time the peril of the Commercial Tax Officer who had revisional power of making an order prejudicial to the assessee in exercise of such revisional power. But the Court was of the view that the 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. On that view, the enhancement made by the Appellate Assistant Commissioner was set aside. On the view we take of the effect of Madras Act 10 of 1963, it seems to us to be unnecessary to examine these two cases more closely.
6. In our opinion, Madras Act 10 of 1963 makes a difference. Section 2 of this Act, as we said, substituted Section 61 by a new section the effect of which is that the repeal of the 1939 Act shall not affect certain things including any right or privilege acquired or accrued. The new Section 61 further saves from the effect of the repeal any investigation, legal proceeding or remedy in respect of any such right or privilege, and says : “and any such investigation, legal proceeding or remedy may be instituted, continued or enforced…as if this Act had not been passed. This section, therefore, clearly preserves the vested right of the assessee under the old Act to file an appeal and a further appeal; and he can pursue this remedy, as if the Madras General Sales Tax Act, 1959, had not been passed. The words in the amending Act as if this Act had not been passed appear to us to be decisive. The remedy is preserved and can be continued as if the new Act (the 1959 Act) had not been passed, and that means, for purposes of preserving and prosecuting that remedy, the 1959 Act should be ignored. That we think is the effect of the words “as if this Act had not been passed”. The remedy so preserved for the assessee is related to the appellate powers as contemplated by the 1939 Act. We are not, in this case, called upon to decide the effect of dropping the Commercial Tax Officer and bringing into existence the post of the Appellate Assistant Commissioner. What will be the consequence of it on the appeal itself to the Appellate Assistant Commissioner from an order passed prior to 1st April, 1959, is a different matter. We are only concerned with the limited question whether in an appeal like that, it is open to the Appellate Assistant Commissioner to enhance the turnover. If the appellate power is to be exercised as if this Act (the 1959 Act) had not been passed, and that means, for purposes of preserving and prosecuting that remedy, the 1959 Act should be ignored. That we think is the effect of the words “as if this Act had not been passed”. The remedy so preserved for the assessee is related to the appellate powers as contemplated by the 1939 Act. We are not, in this case, called upon to decide the effect of dropping the Commercial Tax Officer and bringing into existence the post of the Appellate Assistant Commissioner. What will be the consequence of it on the appeal itself to the Appellate Assistant Commissioner from an order passed prior to 1st April, 1959, is a different matter. We are only concerned with the limited question whether in an appeal like that, it is open to the Appellate Assistant Commissioner to enhance the turnover. If the appellate power is to be exercised as if this Act (the 1959 Act) had not been passed, it is explicit there will be no power in the appellate authority, whatever his designation may be, to enhance the assessment.
7. The Tribunal came to the correct conclusion on the point, and the petition is dismissed with costs. Counsel’s fee Rs. 100.
