9911796707
TMI Blog1978 (10) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1956. Assessment orders both under the said Act and the Central Sales Tax Act, 1956, were passed ex parte on 17th January, 1972. The ex parte orders were made after a number of opportunities had been given to the petitioner to submit explanations, and adjournments had been allowed for this purpose. Thereafter, on 6th February, 1973, the petitioner deposited Rs. 395.25 as tax. A demand notice was served on the petitioner on 13th March, 1973, and an appeal under section 20 of the said Act was filed by the petitioner on 18th April, 1973. A notice was received by the petitioner on 14th June, 1973, to show cause as to why the appeal be not dismissed for want of payment of admitted tax. Thereafter, on 11th September, 1973, the petitioner deposited the sum of Rs. 305 as the balance amount of admitted tax. An application for condonation of delay was also filed. The appeal was then put up on 27th November, 1973. The Assistant Commissioner of Sales Tax by his order dated 4th December, 1973, dismissed the appeal in limine, as according to him, the appeal was barred by limitation and the explanation offered for inordinate delay was not convincing and, as such, there was no ground for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal and not to the payment of the tax admitted to be due. In this connection, the learned counsel for the petitioner has relied on a decision of the Supreme Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur[1968] 21 S.T.C. 154 (S.C.)., and a Full Bench decision of the Patna High Court in Brij Behari Lal v. Firm Srinivas Ram KumarA.I.R. 1939 Pat. 248 (F.B.). The learned counsel for the respondent, however, contends that the tax admitted to be due, not having been paid within the period of limitation and the condonation application having been rejected, the appeal was timebarred. He submits that section 20(1) and the proviso thereto read with rules 60 to 64 of the Delhi Sales Tax Rules, 1951, and form S.T. XXIX also make this clear. In order to appreciate the rival contentions, section 20(1) of the said Act is set out: "20. Appeal, revision and review.-Any dealer may in the prescribed manner appeal to the prescribed authority against any assessment within sixty days or such further period as may be allowed by the Commissioner for cause shown to his satisfaction from the receipt of a notice issued under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur [1968] 21 S.T.C. 154 (S.C.). In the said decision, the Supreme Court was considering section 9 of the U.P. Sales Tax Act, 1948, which is in the following terms: "(1) Any dealer objecting to an order allowing or refusing an application for exemption certificate under clause (b) of sub-section (1) of section 4 or to an order refusing an application under section 30 or to an order imposing a penalty under section 15-A or to an assessment made under section 7, 7-A, 7-B, 18 or 21, may within 30 days from the date of service of the copy of the order or notice of assessment, as the case may be, appeal to such authority as may be prescribed: 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." Rule 66 of the U.P. Sales Tax Rules, 1948, requires that the memorandum of appeal should be accompanied by a challan showing a deposit in the treasury of the tax admitted by the appellant to be due. It was held that the proviso to section 9 was genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been attached. It was only the proof that could be supplied before or at the time of entertainment of the appeal. It was not a case where payment was made beyond limitation and, as such, is not on all fours with the present case. The other case relied on by the petitioner is Brij Behari Lal v. Firm Srinivas Ram KumarA.I.R. 1939 Pat. 248 (F.B.). In that case, the Full Bench of the Patna High Court was interpreting the amended Order 21, rule 90, Civil Procedure Code, which was in these terms: "(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it: (i) Provided that no application to set aside a sale shall be admitted unless (a) it discloses a ground which could not have been put forward by the applicant before the sale was concluded, and (b) the applicant deposits with his application such amount not exceeding 12 per cent of the sum realised by the sale or such other security as the court may in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, or such other sum or security as the court has previously directed," nor do the terms of the proviso make it clear that an application to dispense with the deposit or for leave to deposit less than 121 per cent of the sale proceeds or to give some other security, must be made before an application for setting aside the sale. Harries, C.J., stated: "The Limitation Act only requires that the application be made within thirty days of the sale and, in my view, there is nothing in the substituted proviso to suggest that the money or other security must be deposited within limitation. The substituted proviso is complied if such is made before actual admission and the date of admission cannot be governed by the Limitation Act. " It is true, that in the Patna High Court Full Bench decision, the deposit was made after the time-limit for filing the application had expired. The decision, however, was based on the particular wording of Order 21, rule 90, and in fact there was nothing to suggest that the money or other security had to be deposited within limitation, rather after recording reasons the deposit could be dispensed with. In the present case, section 20(1) of the said Act p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proof of payment of tax is given then the proviso to section 9 is satisfied. In the present case when the assessee produced the necessary documents which showed that the deposit of the full amount had been made by May 27, 1966, the appeal became entertainable. *Here italicised. It only suffered from the defect that it was barred by time on that date. The assessee could, therefore, apply under section 9(6) for extending the period of limitation in accordance with section 5 of the Limitation Act. It is entirely a different matter whether on the facts of the present case the appellate authority would have condoned the delay or not but to say that the appellate authority had no jurisdiction to extend the time simply because the amount of admitted tax had been deposited beyond the period of 30 days would be wholly erroneous and would not represent a true and correct view of the provisions of section 9. It may be pointed out that the case of Lakshmiratan Engineering Works[1968] 21 S.T.C. 154 (S.C.)., on which the High Court largely relied did not involve the question of extension of the period of limitation under section 9(6). Indeed in our judgment the word 'entertain' in section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia, an endorsement in the memorandum of appeal that the tax and penalty admitted to be due have been paid. This would clearly indicate that it is contemplated that the admitted tax be paid before or at the time of filing of the memorandum of appeal, otherwise the memorandum of appeal will be defective. Rule 63, as above-mentioned, gives power to the appellate authority to summarily reject the appeal but only after an opportunity has been given to comply with the requirements of rules 61 and 62. Such a notice was issued by the appellate authority and received by the petitioner on 14th June, 1973. It is only thereafter that the petitioner deposited the remaining amount of the admitted tax and made an application for condonation of delay, the appeal having become time-barred on 13th May, 1973. It would appear that the section and the rules provide that the appellate authority is debarred from entertaining the appeal until it is satisfied that the admitted tax has been paid. Further, the proviso to section 20(1) of the said Act does not provide for any extension of the period for payment of the admitted tax. The payment is to be made within limitation or such other extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read in isolation. It must be read with section 20(1) and rules 60 to 64 and form S.T. XXIX. In the circumstances, it would appear that the memorandum of appeal filed on 18th April, 1973, was defective. On a notice to show cause, as to why the appeal be not dismissed for want of payment of admitted tax, received by the petitioner on 14th June, 1973, the petitioner deposited the balance of the admitted amount of tax on 11th September, 1973, and removed the defect. As such the appeal would be deemed to have been properly filed on 11th September, 1973. But by this date it had become time-barred. The petitioner's application for condonation of delay was rejected on merits. For the reasons outlined above, we reject the main contention of the learned counsel for the petitioner. The learned counsel for the petitioner further contended that rule 62(a), which provides for an endorsement at the presentation of appeal by the appellant or his agent "that the amount of tax assessed and the penalty (if any) imposed or the tax and penalty admitted to be due, has been paid", is in conflict with the proviso to section 20(1) of the said Act. The argument is that the proviso to section 20(1) perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that under the amended article 226 of the Constitution of India the writ petition was not maintainable. He submitted that the challenge on the question of vires of section 20(1) of the said Act was not of substance and, as such, only an excuse to come by way of a writ petition. Further, the decision of the Andhra Pradesh High Court in Suryalakshmi Cotton Mills Ltd. v. Deputy Commissioner of Commercial Taxes, Hyderabad Division[1969] 23 S.T.C. 178 at 186., was clearly distinguishable. We need not spend too much time on the question of maintainability of the writ petition. It is well-settled that if the vires of a statute is challenged, then the authorities under the statute cannot determine this question. The question whether the challenge raised to the vires of the provisions of the statute ultimately succeeds or fails is not relevant. If there is a genuine challenge to the vires of the provisions of the statute, then a petition under article 226 of the Constitution of India is maintainable. The question of discrimination as raised by the learned counsel for the petitioner fails to take into consideration the second proviso to subsection (3) of section 20 of the said Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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