1967 (9) TMI 116 - SC - VAT and Sales Tax

Whether having made the deposit even before the appeal was filed and well within the period of limitation, the assessee could be deprived of his right of appeal under section 9 of the Uttar Pradesh Sales Tax Act, 1948? Held that - Appeal allowed. In the present case when the Assistant Commissioner took up the appeal for consideration, satisfactory proof was available in the shape of a certificate which even today is not denied. In our opinion the Assistant Commissioner was wrong in declining to consider the appeal in the presence of such uncontestable proof.

Summary

Issues Involved:
1. Rejection of the memorandum of appeal due to lack of proof of tax payment.
2. Interpretation of Section 9 of the Uttar Pradesh Sales Tax Act, 1948.
3. Validity and application of Rule 66(2) of the U.P. Sales Tax Rules, 1948.
4. Definition and timing of the term "entertain" in the context of appeals.
5. Exhaustion of alternative remedies before approaching the Supreme Court.

Detailed Analysis:

1. Rejection of the Memorandum of Appeal Due to Lack of Proof of Tax Payment:
The core issue revolves around the rejection of the appellant's memorandum of appeal by the Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur. The memorandum was deemed defective because it was not accompanied by the challan showing the deposit of admitted tax under Section 9 of the Uttar Pradesh Sales Tax Act, 1948. Although the appellant had paid the admitted tax before filing the appeal, he failed to present proof of this payment at the time of filing. The Assistant Commissioner rejected the appeal on this basis, despite the appellant later providing a certificate of payment from the Sales Tax Officer.

2. Interpretation of Section 9 of the Uttar Pradesh Sales Tax Act, 1948:
Section 9 of the Act stipulates that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. The appellant argued that the provision does not create a bar as long as satisfactory proof is provided before the appeal is heard or admitted. The court examined whether the term "entertained" in Section 9 means that the appeal must be accompanied by proof of payment at the time of filing or at the time of consideration.

3. Validity and Application of Rule 66(2) of the U.P. Sales Tax Rules, 1948:
Rule 66(2) of the U.P. Sales Tax Rules requires that the memorandum of appeal shall be accompanied by a challan showing the deposit of the admitted tax. The appellant contended that this rule should be considered directory rather than mandatory, arguing that other satisfactory modes of proof should also be acceptable. The court agreed, stating that the rule indicates one of the modes of satisfactory proof but does not exclude other valid methods.

4. Definition and Timing of the Term "Entertain" in the Context of Appeals:
The court analyzed the meaning of the term "entertain" and concluded that it means "admit to consideration." The court held that the appeal should not be considered incompetent if satisfactory proof of tax payment is provided at the time of the first consideration of the appeal, whether at the admission stage or during the hearing. The court referenced several cases from the Allahabad High Court, which supported the interpretation that "entertain" means to consider or adjudicate upon, rather than merely file or receive.

5. Exhaustion of Alternative Remedies Before Approaching the Supreme Court:
The appellant bypassed other remedies under the Sales Tax Act, such as revision or reference to the High Court, and directly approached the Supreme Court by special leave. The court justified granting special leave, noting that pursuing other remedies would have been futile given the binding precedent of the Allahabad High Court in Swastika Tannery of Jajmau v. Commissioner of Sales Tax, U.P., Lucknow. The court emphasized that in extraordinary cases, direct intervention is warranted to serve the ends of justice and avoid unnecessary procedural delays.

Conclusion:
The Supreme Court allowed the appeal, holding that the Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur, erred in rejecting the appeal despite the appellant providing satisfactory proof of tax payment before the appeal was considered. The court remitted the case to the Assistant Commissioner for disposal in accordance with the law, emphasizing that procedural rules should advance justice rather than defeat it. There was no order as to costs.