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TMI Blog1968 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... short of the amount of admitted tax by Rs. 2. The appellant deposited an additional sum of Rs. 5 in January, 1967. When the appeal came up for hearing before the Assistant Commissioner (Judicial), Kanpur, on 1st March, 1967, it was urged for the Sales Tax Officer that the appeal ought to be rejected on the ground that proof of payment of the admitted tax did not accompany the memorandum of appeal. This contention was accepted by the appellate authority. There was an application by the appellant under section 5, Indian Limitation Act, for condoning delay. It was held that section 5, Indian Limitation Act, could not be pressed into service for condoning non-fulfilment of the condition prescribed by the proviso to section 9 of the Act. In the result the Assistant Commissioner dismissed the appeal on 1st March, 1967, on the ground that it was not maintainable. The present writ petition by the dealer is directed against the appellate order of respondent No. 1 dated 1st March, 1967. When the writ petition came up for hearing before a Division Bench of this Court it was noticed that there was a conflict of opinion between Division Benches of this Court as regards the meaning to be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or furnishing security is complied with. If the requirement as to deposit or security is complied with at the time of filing of an objection within limitation and security is furnished after expiry of limitation, the subsequent compliance does not save limitation. In Kundan Lal v. J.N. Sharma1962 A.L.J. 574., it was held that the expression "entertained" cannot be given the same meaning as the word "filed". The true intention of the proviso appears to be to allow the judgment-debtor to prosecute his application to set aside the sale if he complies with the conditions contained in the proviso to rule 90 before the application is finally heard and disposed of by the court. Similarly, in D.C. Jain v. C. L. Gupta1962 A.L.J. 729., it was observed that the word "entertain" bears the meaning of admitting to consideration. In Rahim Bux Sons v. Firm Samiullah SonsA.I.R. 1963 All 320., it was held that the word "entertain" in the proviso to Order 21, rule 90, Civil Procedure Code, does not mean "receive" or "accept", but "proceed to consider on merits" or "adjudicate upon". The first proviso to section 9(1) of the U.P. Sales Tax Act; 1948, came up for consideration before a Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the time of hearing of the appeal." In view of this decision of the Supreme Court, the view taken by the Allahabad High Court in Swastika Tannery of Jajmau v. Commissioner of Sales Tax[1963] 14 S.T.C. 518. , as regards the interpretation of the word "entertained " in the first proviso to section 9(1) of the Act cannot be accepted. Mr. B.D. Agarwal appearing for the respondents drew our attention to the following passage on page 163 in the judgment of the Supreme Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner, Kanpur[1968] 21 S.T.C. 154.: "But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal." Mr. B.D. Agarwal contended that, apart from the question of furnishing proof of payment, the tax has to be deposited within the period of limitation prescribed for appeals. Mr. Swami Dayal appearing for the petitioner urged before us that that observation on page 163 of the judgment of the Supreme Court was merely an obiter dictum. On reading the entire judgment delivered by the Supreme Court in that case, I am unable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation. The Supreme Court approached the problem thus. The important thing is that the admitted tax has to be deposited within limitation. Once this basic condition is fulfilled, the manner of furnishing proof of payment is a matter of secondary importance. In view of these considerations, the observation of the Supreme Court on page 163 of the judgment that satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal cannot be dismissed as a passing remark. That is the declaration of the Supreme Court as regards the deposit of admitted tax. Under Article 141 of the Constitution, that declaration of law is binding on this Court. It may be that the view taken by this Court in the case of Swastika Tannery of Jajmau v. Commissioner of Sales Tax[1963] 14 S.T.C. 518. that proof of payment must accompany the memorandum of appeal is not sound. Yet the ultimate decision of this Court in that case may be supported on the ground that the appellant did not deposit the full amount of the admitted tax within the period of limitation. Mr. Swami Dayal urged that, in view of the fact that the deposit by the petitioner was short by the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Works Ltd. v. Assistant Commissioner, Kanpur(1) that satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. The Assistant Commissioner rightly held that the appeal was not maintainable. The appeal was rightly dismissed. In my opinion, this petition should be dismissed with costs. PATHAK, J.-I am also of the opinion that the petition should be dismissed. I shall state my reason briefly. The principal question between the parties is whether the admitted tax was paid within time. Section 9(1) provides: "Any dealer objecting........ to an assessment made under section 7 ...... may within 30 days from the date of service of the notice of assessment......... appeal....... Provided 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, or of such instalments thereof as may have become payable." It is clear there is a right of appeal under section 9(1) and that appeal cannot be entertained unless accompanied by satisfactory proof that the amount of the admitted tax has been paid. The Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. A perusal of these several provisions demonstrates that there is a complete self-contained code in the Act and the Rules in respect of the payment of tax. You must have recourse to that code whenever you wish to determine the manner and the time within which the tax has to be paid. The admitted tax, to which the proviso to section 9(1) refers, is merely a part of the assessed tax mentioned in section 8(1). It is part of the tax liability respecting which complete provision for payment has been made within the framework of the code. It will also be noticed that the proviso to section 9(1) speaks of proof of payment of the admitted tax or of the instalments thereof which have become payable. The language is strongly reminiscent of section 8(1) which provides for the payment of tax either in one sum or in instalments. That is clear indication of the relationship between section 8(1) and the proviso to section 9(1). Another circumstance of some significance is that the period within which the dealer is required to pay the tax is, by paragraph 3 of the notice of assessment and demand, 30 days from the date of service of the notice. That is also the period of limitation for fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for preferring the appeal or making the application within such period." Section 5 provides for condoning the delay in filing an appeal or application. Section 9(6), U. P. Sales Tax Act, applies section 5 to appeals. Section 5 is not attracted when the question arises whether the delay in depositing the admitted tax should be condoned. It seems to me that the application made by the petitioner for condonation of the delay in depositing the entire amount of the admitted tax is not maintainable under section 5 of the Limitation Act read with section 9(6) of the U. P. Sales Tax Act. In my judgment, the petition should be dismissed with costs. RAJESHWARI PRASAD, J.-For the reasons given by his Lordship the Chief Justice as well as those given by Honourable Pathak, J., I agree with the proposed order. The entire admitted amount of tax must be deposited within the period prescribed for filing appeal against an order of assessment of sales tax made under the U. P. Sales Tax Act, 1948. By the Court The petition is dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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