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TMI Blog1967 (9) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/3rd April, 1967, of the Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur, by which the Assistant Commissioner rejected as defective the memorandum of appeal filed by the present appellant against the assessment order passed by the Sales Tax Officer (S-1), Kanpur. The defect, according to the Assistant Commissioner, was that the memorandum of appeal (which had been filed well within time) was not accompanied by the challan showing the deposit of admitted tax under section 9 of the Uttar Pradesh 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en complied with since no proof had been given along with the memorandum of appeal that the tax had been paid. Simultaneously, the application for condonation of delay was also dismiss- ed. Against this order, the assessee has filed the present appeal. The short question in this case is 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 Act. Alternatively, it is to be considered whether 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to such modifications as the Legislature may make during the session in which they are so laid. In exercise of this power, the State Government has framed the U. P. Sales Tax Rules, 1948. Rules 66 and 67 of these Rules bear, among others, upon appeals. Sub-rule (1) of rule 66 provides for the content of the appeal by stating what the memorandum of appeal shall specify in relation to the name and address of the appellant etc., We are not concerned with it. Sub- rule (2) then states that "the memorandum of appeal shall 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it finally "entertained" when it is heard and disposed of. Numerous cases exist in the law reports in which the word "entertained" or similar cognate expressions have been interpreted by the courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present we must say that if the Legislature intended that the word "file" or "receive" was to be used, there was no difficulty in using those words. In some of the statutes which were brought 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 advisedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication in the absence of deposit made within the time allowed by law. This case turned on the fact that the deposit was made out of time. In yet another case of the Allahabad High Court reported in Haji Rahim Bux Sons and Others v. Firm Samiullah Sons A.I.R. 1963 All. 320., a Division Bench consisting of Chief Justice Desai and Mr. Justice S.D. Singh interpreted the words of Order 21, rule 00, by saying that the word "entertain" meant not "receive" or "accept" but "proceed to consider on merits" or "adjudicate 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lays down one uncontestable mode of proof which the court will always accept but it does not exclude the operation of the proviso when equally satisfactory proof is made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time. In this sense, the rule can be regarded as directory since it lays down one of those modes which will be unquestioned for its validity. The other modes of proof are not necessarily shut out. It is to be remembered that 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 concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. It remains to point out why we did not insist upon the assessee exhausting his other remedies under the Act before coming to this Court. It was made to appear to us that there is a right of revision and right of reference to the High Court in all such cases and that this remedy was not resorted to by the assessee before making a petition 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., ..... X X X X Extracts X X X X X X X X Extracts X X X X
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