1978 (10) TMI 140 - HC - VAT and Sales Tax

Issues Involved:
1. Whether the admitted tax must be paid before or with the filing of the memorandum of appeal.
2. Whether the appeal was time-barred due to the late payment of admitted tax.
3. Whether the provisions of section 20(1) and the proviso to the said Act are discriminatory and violate Article 14 of the Constitution.
4. Whether the writ petition under Article 226 of the Constitution is maintainable.

Detailed Analysis:

1. Payment of Admitted Tax Before or With Filing of Appeal:
The main contention was whether the admitted tax must be paid before or at the time of filing the memorandum of appeal. The petitioner argued that the proviso to section 20(1) of the said Act does not necessitate the payment of admitted tax before or with the filing of the appeal. The petitioner relied on the Supreme Court decision in *Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur* [1968] 21 S.T.C. 154 (S.C.), which interpreted "entertained" to mean that satisfactory proof of tax payment must be presented when the appeal is considered. However, the court noted that the payment in the cited case was within the limitation period, unlike the present case where the payment was made after the limitation period expired.

2. Appeal Time-Barred Due to Late Payment:
The court examined whether the appeal was time-barred due to the late payment of the admitted tax. The Assistant Commissioner of Sales Tax dismissed the appeal as time-barred, relying on *Lalta Prasad Khinni Lal v. Assistant Commissioner (Judicial), Sales Tax, Kanpur Range I* [1972] 29 S.T.C. 201 (S.C.), which held that an appeal is deemed to be filed on the date the admitted tax is paid. Since the tax was paid after the limitation period, the appeal was time-barred. The court confirmed that the appeal was properly filed only on 11th September 1973, when the admitted tax was paid, and by this date, it was time-barred. The application for condonation of delay was rejected on merits by the appellate authority and the revisional authority.

3. Discrimination and Article 14:
The petitioner argued that section 20(1) and its proviso are discriminatory and violate Article 14 of the Constitution, as revisions under section 20(3) do not require tax payment. The court rejected this argument, noting that the second proviso to section 20(3) states that no revision lies if an appeal is competent against the assessment order. Thus, no discrimination arises as the assessees are not similarly situated, and the appellate and revisional powers are distinct.

4. Maintainability of Writ Petition:
The petitioner contended that the writ petition is maintainable under Article 226 of the Constitution since the vires of the statute were challenged. The court agreed, stating that authorities under the statute cannot determine the vires of the statute. The court cited *Commissioner of Income-tax v. National Small Industries Corporation Ltd.* [1973] 91 I.T.R. 579, which supports the maintainability of a writ petition when the vires of a statute are challenged.

Conclusion:
The court held that the writ petition is maintainable but rejected it on merits. The court confirmed that the appeal was time-barred due to the late payment of the admitted tax and that the provisions of section 20(1) and its proviso are not discriminatory. The petition was dismissed with no order as to costs.

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