1991 (7) TMI 364 - HC - VAT and Sales Tax

Summary

Issues:
1. Maintainability of appeal before the Appellate Tribunal due to non-payment of admitted tax.
2. Jurisdiction of the Appellate Tribunal to entertain the appeal after dismissal by the first appellate authority.

Detailed Analysis:

Issue 1: The revision petitioner, an assessee, challenged the order of assessment for the year 1982-83 before the Appellate Assistant Commissioner. The appeal was dismissed by the Commissioner for failure to produce proof of payment of admitted tax. Subsequently, the petitioner filed a second appeal before the Appellate Tribunal, seeking condonation of the delay in filing the appeal. Another application for condonation of delay in paying the admitted tax was also filed but dismissed by the Tribunal. The Tribunal held that the second appeal was not maintainable due to non-payment of admitted tax, rendering the application for condonation of delay in paying tax infructuous. The Appellate Tribunal then dismissed the appeal as well.

Issue 2: The key question was whether the Appellate Tribunal had jurisdiction to entertain the appeal against the order of the Appellate Assistant Commissioner, which dismissed the appeal due to non-production of proof of payment of admitted tax. The Court analyzed the relevant proviso under the Act, which mandated that no appeal shall be entertained unless accompanied by satisfactory proof of payment of the admitted tax. The Court emphasized that an appeal must not only be maintainable but also entertainable, requiring consideration on merits. The Court held that if the appellate authority finds an appeal not maintainable, it must dismiss the appeal, becoming functus officio. The Appellate Tribunal lacked jurisdiction to direct the first appellate authority to entertain the appeal post dismissal, even if proof of payment of admitted tax was subsequently provided.

In conclusion, the Court dismissed the revision petition, holding that the Appellate Tribunal did not have the jurisdiction to entertain the appeal after the first appellate authority dismissed it for non-payment of admitted tax. The Court emphasized that the dismissal of an appeal for being not entertainable is appealable, but the Appellate Tribunal cannot restore and entertain the appeal without statutory provisions allowing such action.