JUDGMENT

Arun Tandon, J.

1. Assessment proceedings in respect of the assessment year 1996-97 were initiated and were closed under an assessment order dated 30th March, 1999. Feeling aggrieved by the said order, petitioner preferred an appeal under Section 9 of the Trade Tax Act, being First Appeal No. 1622 of 1999. The appeal so filed was decided under order dated 25.8.2000.

2. Second Appeal against such an order is provided for under Section 10 of the Trade Tax Act. The period prescribed for filing of such an appeal is 90 days. The second appeal, in fact, was filed by the petitioner on 8^th February, 2001. The appeal was reported defective on the grounds (a) beyond the limitation prescribed (b) it was not accompanied with sufficient fee payable on memo of appeal. The objections in that regard were considered by the Trade Tax Tribunal and by means of the order dated 22nd March, 2005 the appeal has been dismissed on the ground that it does not bear sufficient fee of Rs. 10,000/- as required under the Act. Therefore the report of the Munsarim is correct. The petitioner has been granted time to make good the deficiency in fee. It is against this order of the Tribunal, the present writ petition has been filed.

3. On behalf of the petitioner it is contended that the cause of action for filing of the second appeal arose on the date the assessment order was passed, in the facts of the case in the year 1999. At the relevant time the fee payable on the memo of second appeal was 500/- only. Along with the appeal filed by the petitioner in fact fee of Rs. 2100/- was deposited and therefore the report of the Munsarim as well as the order of the Tribunal, holding that the stamp duty paid on the memo of appeal was not sufficient, is factually in correct and based on non-consideration of legal position in that regard. In order to keep the record, Counsel for the petitioner states that by means of Section 6 of U.P. Act No. 35 of 2000 amendments were made in Section 32 of the U.P. Trade Tax Act, 1948. The fee payable on memo of appeal was revised from Rs. 500/- to Rs. 10,000/-. It is further pointed out that by means of U.P. Act No. 11 of 2001, vide Section 13 further amendment has been made in Section 32 of the principal Act and it has now been provided that on second appeal filed on and from March 5, 2001 the fee payable shall be Rs. 21,00/- only. Counsel for the petitioner submits that aforesaid amendments in Section 32 have absolutely no application inasmuch as the right to file the appeal, being a vested right, accrued on the date the order of assessment is passed and therefore the fee payable on the memo of appeal is to be determined with reference to the date on which the right to file the appeal had accrued. In support thereof, counsel for the petitioner has placed reliance upon the judgment of Hon'ble Supreme Court ;

Garikapati Veeraya v. N. Subbiah Choudhry and Ors. (paragraph 23 Sub-clause 1, 2, 3 and 4).

4. Standing Counsel on the other hand submits that the language of Section 6 of the U.P. Act No. 11 of 2001, whereby Section 32 of the principal Act of the U.P. Trade Tax so amended is categorical and it takes care of appeals, which are to be filed irrespective of the fact as to whether assessment proceedings were initiated prior to the commencement of the Amending Act. Therefore it is contended that the report submitted by the Munsarim as well as order passed by the Tribunal are in strict conformity with law and call for no interference.

5. I have heard counsel for the parties and have gone through the records of the writ petition.

6. It is not in dispute between the parties that in the year, 1999 when the assessment order was passed against the petitioner, the fee payable on the second appeal was Rs. 500/-. It is also not in dispute that the petitioner (for reasons best known to him) Filed his second appeal on 8^th February, 2001. On 8^th February, 2001 when the appeal was filed the provisions of Section 32 of the principal Act had been amended by U.P. Act No. 35 of 2000. Section 6 of the Amending Act reads as follows:

6. Amendment of Section 32.-- In Section 32 of the principal Act, for Sub-section(1), the following sub-section shall be substituted, namely:

(1) Subject to the provisions of Sub-section (3), the fee payable on a memorandum of appeal or other application under this Act filed or moved on or after the date of the commencement of the Uttar Pradesh Trade Tax (Second Amendment) Act, 2000. Whether the assessment penalty or other proceedings giving rise to such appeal or application were initiated before or after such commencement, shall be as follows:

(a) On a memorandum of appeal Two per cent of the under Section 9 amount of tax, fee or penalty in dispute,

subject to a minimum of

one hundred rupees an

a maximum of one

thousand rupees.

(b) On a memorandum of appeal Seven and half per cent under Section 10 of the amount of tax, fee or penalty in dispute,

subject to a minimum of

five hundred rupees and

a maximum of ten

thousand rupees.

7. From a bare reading of Section 32, as amended by Section 6 of Amending Act of 2000 it is apparently clear that the fee payable on the memorandum of appeal to be filed under the Trade Tax Act to be moved on or after the date of commencement of U.P. Trade Tax (Second Amendment) Act, 2000 i.e. 1^st November, 2000 had been fixed at Rs. 10,000/-. The Amending Section takes within its scope the appeal which are to be filed subsequent to the Amending Act irrespective of the issue whether the assessment, penalty or other proceedings giving rise to such appeal or application were initiated before or after such commencement.

8. In view of the specific language of Section 6 of the Amending Act of 2000, there is little scope to suggest that on the second appeals which are to be filed under the Trade Tax Act subsequent to 1.11.2000, arising out of proceedings of assessment initiated prior to the commencement of the Amending Act of 2000, still required a fee of Rs. 500/- only. The language of the amending Section is self explanatory and leaves no room for any different interpretation being placed there upon. It may be recorded that Section 6 of the Amending Act of 2000 is not under challenge in the present writ petition. Therefore, this Court has to read the section as it stands on the statute book.

9. In view of the specific language of Section 6 of the Amending Act of 2000, this Court has no hesitation to record that all second appeals to be filed under U.P. Trade Tax Act, 1948 subsequent to the enforcement of U.P. Act No. 35 of 2000 i.e. 1^st November, 2000 must be accompanied with a fee of Rs. 10,000/- irrespective of the fact as to whether the assessment proceedings, giving rise to the appeal, were initiated prior to the commencement of Amending Act No. 35 of 2000. Therefore the objection raised by the Munsarim as well as the order passed by the Tribunal cannot be faulted with, as the same is with conformity of Section 6 of the Amending Act No. 35 of 2000.

10. At this stage reference may also be had to the subsequent amendment made to Section 32 of the principal Act vide U.P. Act No. 11 of 2001, which reads as follows:

13. Amendment of Section 32.-- In Section 32 of the principal Act,-

(i) in Sub-section (1), in Clause (b) for the words "ten thousand rupees" the words "two thousand one hundred rupees on and from March 5, 2001" shall be substituted;

(ii) in Sub-section (2), in the proviso, for the words "fifteen rupees", the words "fifty rupees" shall be substituted.

11. From a reading of the aforesaid amending Section it is apparently clear that for the second appeals to be filed on or from March 5, 2001 the fee payable has been fixed at Rs. 21,00/-.

12. From the facts as have been noticed herein above, the case of the petitioner is not covered by Section 13 of U.P. Act No. 11 of 2001 inasmuch as second appeal in fact had been filed by the petitioner on 8^th February, 2001 i.e. prior to 5^th March, 2001. In such circumstances the amendment made by U.P. Act No. 11 of 2001 to Section 32 of the principal Act being prospective in nature are not attracted in the case of the petitioner and the fee payable by the petitioner on the memo of second appeal has to be determined with reference to Section 32, as it stood on 8.2.2001 i.e. as amended by U.P. Act No. 35 of 2000 only.

13. Reference may be made to the judgment relied upon by the counsel for the petitioner in the case of Garikapati Veeraya v. N. Subbiah Choudhry and Ors. . Relevant paragraph 23 of the same read as follows:

(23) From the decisions cited above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) ...

(v) This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise.

14. From the legal principle laid down in the aforesaid judgment, the right of appeal is substantive right vested in the parties as on and from the date the is commences, although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails on the date of its decision or on the date of the filing of the appeal. Such conclusions, however, have been circumscribed by Sub-clause 5 of paragraph 23 of the said judgment, which provides that vested right of appeal can be taken away by a subsequent enactment, if it so provides expressly or by necessary implication. The power to take away the right of appeal by a subsequent statute includes within its fold, a power to make an amendment in the existing statute conferring the right of appeal so as to make the right more cumbersome by increasing the fee payable on the memo of appeal.

15. As already recorded herein above, Section 6 of the Amending Act No. 35 of 2000 by necessary implication predetermines the fee payable in respect of the appeal to be filed subsequent to the enforcement of Act No. 35 of 2000 even in respect of proceedings of assessment whereof was commenced prior to enforcement of the amending Act.

16. In the opinion of the Court, the fee to be paid on the second appeals to be filed on or after 1.11.2000 had been altered by the Amending Act i.e. U.P. Act No. 11 of 2000, even in respect of matters, assessment proceeding whereof was initiated prior to the commencement of Amending Act No. 11 of 2001.

17. In view of the aforesaid, the order passed by the Tribunal dated 22.3.2005 calls for no interference. The writ petition is accordingly dismissed. However, in the facts of the case it is provided that the petitioner may deposit the balance amount of fee payable on the memo of appeal, as per the order of Tribunal dated 22.3.2005, within one month from today, the deficiency so made good with regards to fee payable on memo of appeal shall be accepted by the Tribunal and Tribunal shall thereafter proceed to decide the appeal in accordance with law at the earliest possible, preferably within three months.