9911796707
TMI Blog1967 (9) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... radesh Sales Tax Act, 1948. The appellant did not file an application for revision and did not also invite a reference to the High Court of Allahabad but came direct to this Court by special leave which was granted by us on 23rd August, 1967. At the first hearing of the petition, the State of Uttar Pradesh represented by Mr. 0. P. Rana objected to the grant of special leave inasmuch as the other provisions under which remedy could be obtained under the Sales Tax Act had been by-passed. At that time, we overruled the objection and in the course of this judgment, we shall briefly indicate the reasons which had then prevailed with us. The facts of the case are as follows: The appellant had declared his turnover for the year,1964-65 at Rs. 3,70,941.07 p. on which the admitted tax under the Act came to Rs. 11,135.58 p. The Sales Tax Authorities, how- ever, assessed his turnover at Rs. 30 lakhs on which tax was calculated at Rs. 90,000. The appellant appealed to the Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur. His appeal was filed on 16th May, 1966, the order of assessment and the demand notice having been served on him on 16th April, 1966. The appeal was theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the proof of the payment of the admitted tax had to accompany the memorandum of appeal as required by rule 66(2) and on failure to furnish such proof, the appeal itself became incompetent. In support of his order the Assistant Commissioner relied on a decision of the Allahabad High Court reported in Swastika Tannery of Jajmau v. Commissioner of Sales Tax, U.P. Lucknow [1963] 14 S.T.C. 518. in which the learned Chief Justice of that Court and another learned Judge have laid down that the proof of payment must be as required by the rules and, therefore, the memorandum of appeal ought to be accompanied by the challan showing payment of tax before the appeal can be said to be competent. We shall refer to that ruling presently. In this appeal, learned counsel for the assessee has relied upon a number of authorities in which the interpretation runs counter to the decision of the learned Chief Justice just adverted to and had contended that section 9 of the Act does not create the bar which the ruling and the Assistant Commissioner's reliance on that ruling has created in the way of the appeal. His contention is that if satisfactory proof is-given before the appeal is heard or at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be accompanied by ... a challan showing deposit in the treasury of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable." Rule 67 lays down how the appeals have to be presented. Sub- rule (1) provides that the memorandum of appeal shall be presented by the appellant or his lawyer or duly authorised agent to the Assistant Commissioner (Judicial) or may be sent by registered post addressed to the Assistant Commissioner (Judicial). Sub-rule (2) provides that if the memorandum of appeal is in order, the Assistant Commissioner (Judicial) shall admit it and on admission, the Reader of the Assistant Commissioner (Judicial) shall endorse thereon the date of its presentation and shall register it in a book to be known as Register of Appeals. The third sub- rule says that if the memorandum of appeal is not in order, it may be rejected or returned after the necessary endorsement on its back about its presentation and returned to the applicant for correction and re-presentation within the time to be fixed by the Assistant Commissioner (Judicial) or be amended then and there. Lastly sub-rule (4) provides that on admission of an appeal, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to our notice such expressions have in fact been used. For example, under Order 41, rule 1, of the Code of Civil Procedure it is stated that a memorandum shall not be filed or presented unless it is accompanied etc.; in section 17 of the Small Causes Courts Act, the expression is "at the time of presenting the application". In section 6 of the Court-fees Act, the words are "file" or "shall be received". It would appear from this that the Legislature was not at a loss for words if it had wanted to express itself in such forceful manner as is now suggested by counsel for the State. It has used the word "entertain" and it must be accepted that it has used it advisedly. This word has come in for examination in some of the cases of the Allahabad High Court and we shall now refer to them. In Kundan Lal v. Jagannath Sharma A I.R. 1962 All. 547., the Court was concerned with Order 21, rule 90, of the Code of Civil Procedure which had been amended by the Court by changing the provisions of the original Code. The changed rule is as follows: "Provided that no application to set aside the sale shall be entertained: (a) upon any ground which should have been taken by the applicant on or bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon ". In our opinion these cases have taken a correct view of the word "entertain" which according to dictionary also means "admit to consideration". It would therefore appear that the direction to the court in the proviso to section 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai, C.J.) holds that the words "accompanied by" showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making "an appeal" the equivalent of the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all rules of procedure are intended to advance justice and not to defeat it. Here the right of appeal has been made subservient to the payment of the admitted tax. If the admitted tax is paid and there is proof available that it has been so paid, there exists no reason to create a second impediment in the way of the appeal. No doubt, the rule makes it easy for the assessee to bring satisfactory proof in an uncontestable manner, but the provision of the rule is not to the exclusion of other satisfactory modes of proof. Suppose for instance that the challan was lost and the time for the filing of the appeal was expiring, could or could not the person concerned say that he had the certificate but had lost it and that he would produce a copy of the challan from the treasury or obtain a certificate from the Treasury Officer. Could he not obtain from the bank the discharged cheque by which the amount of tax was deposited by him and produce it as the discharged counterfoil of payment. All these modes of proof will be equally irrefutable. In the present case the assessee had in his petition of appeal stated that the amount of tax had been paid and had fortified the statement by an affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for special leave in this Court. We were taken through a number of cases in which it has been laid down by this Court that this Court will not ordinarily grant special leave to appeal against an order when other remedies are available and have not been exhausted. But there is no inflexible rule that this Court will never entertain an appeal and numerous instances have occurred in this Court where such appeals have been admitted. It would have been futile in this case for the assessee to have gone to the court of revision, which was bound by the ruling of the Allahabad High Court reported in Swastika Tannery of Jajmau v. Commissioner of Sales Tax, U.P., Lucknow [1963] 14 S.T.C. 518., and it would have been equally futile to have gone to the High Court on a reference. The matter was more easily disposed of by giving special leave in this Court and we therefore felt that this was one of those extraordinary cases in which the ends of justice would be better served, by avoiding a circuity of action and by dealing with this matter in this Court directly. It is for this reason that we granted special leave to appeal. The appeal shall therefore be allowed and the appeal shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
