1968 (5) TMI 50 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Compliance with the first proviso to sub-section (1) of section 9 of the U.P. Sales Tax Act, 1948.
2. Interpretation of the term "entertained" in the context of appeals under the U.P. Sales Tax Act.
3. Application of Section 5 of the Indian Limitation Act for condoning delay in depositing the admitted tax.
4. Validity of the appellate authority's decision to dismiss the appeal for non-payment of the admitted tax within the prescribed period.

Detailed Analysis:

1. Compliance with the first proviso to sub-section (1) of section 9 of the U.P. Sales Tax Act, 1948:
The petitioner, a dealer in cycles and cycle parts, appealed against an assessment order dated 29th August 1966, which fixed their net turnover at Rs. 2,60,000 and assessed Rs. 12,940 as payable sales tax. The appeal was filed on 19th September 1966, with an admitted tax amount of Rs. 1,612.91. However, the petitioner had deposited only Rs. 1,610.91 by that time, falling short by Rs. 2, which was later deposited in January 1967. The appellate authority dismissed the appeal on the grounds that it was not accompanied by satisfactory proof of the payment of the admitted tax as required by the first proviso to sub-section (1) of section 9 of the Act and sub-rule (2) of rule 66.

2. Interpretation of the term "entertained" in the context of appeals under the U.P. Sales Tax Act:
The term "entertained" in the first proviso to sub-section (1) of section 9 of the Act was central to the case. The court referred to previous judgments and the Supreme Court's decision in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner, Kanpur, which clarified that "entertained" means the first occasion on which the court takes up the matter for consideration. This could be at the admission stage or the hearing of the appeal. The Supreme Court emphasized that satisfactory proof of payment of the admitted tax must be presented within the period of limitation for the appeal.

3. Application of Section 5 of the Indian Limitation Act for condoning delay in depositing the admitted tax:
The petitioner argued that the Assistant Commissioner should have condoned the delay in depositing the admitted tax under section 5 of the Indian Limitation Act. However, the court held that Section 5 pertains to condoning delays in filing appeals or applications, not in fulfilling conditions precedent like tax deposits. The Assistant Commissioner correctly ruled that there was no room to apply Section 5 for condoning the delay in depositing the admitted tax.

4. Validity of the appellate authority's decision to dismiss the appeal for non-payment of the admitted tax within the prescribed period:
The court examined whether the petitioner complied with the requirement to deposit the admitted tax within the limitation period. It was established that the admitted tax had to be paid within 30 days from the date of service of the notice of assessment, coinciding with the period for filing the appeal. The petitioner failed to deposit the full amount within this period, making the appeal non-maintainable. The court upheld the Assistant Commissioner's decision to dismiss the appeal, emphasizing that the admitted tax must be deposited within the prescribed period for the appeal to be entertained.

Conclusion:
The petition was dismissed with costs, affirming that the appeal was rightly dismissed due to non-compliance with the statutory requirement of depositing the admitted tax within the prescribed period. The court reiterated the importance of adhering to procedural requirements for appeals under the U.P. Sales Tax Act.