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TMI Blog1988 (4) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to Rs. 6,000. Being aggrieved the assessee appealed to the Assistant Commissioner (Judicial), who however, dismissed the appeal on a preliminary ground for the assessee's failure to make payment of admitted tax, a condition precedent, for the maintainability of the appeal. The matter was taken up before the revising authority, where it was contended that, all the purchases of kerosene oil disclosed by the assessee were from within the State and there was no tax liability, which was required to be paid. It was contended that the assessee wanted to produce purchase vouchers before the appellate authority, but no opportunity was afforded. In view of these allegations the revising authority set aside the appellate order with directions that the Assistant Commissioner (Judicial) should grant opportunity to the assessee, to produce the relevant purchase vouchers and the appeal should thereafter be disposed of according to law. The Assistant Commissioner once again dismissed the assessee's appeal, on the preliminary ground, stated earlier, against which the assessee went up in second appeal, before the Sales Tax Tribunal. The Tribunal also dismissed the appeal by the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been found due, under the Act. Section 9 before and after amendment, read as under: Section 9 before amendment: "9. Appeal.-(1)......... 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." Section 9 after amendment: "9. Appeal.-(1)......... Provided that no appeal against an assessment order under this Act shall be entertained unless the appellant has furnished satisfactory proof of the payment of not less than,- (a) where return is filed,-the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the return filed by him or at a later stage in proceedings before the assessing authority, whichever is greater; or (b) where no return is filed,-the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted at any stage in proceedings before the assessing authority, or 20 per cent of the amount of tax or fee assessed, whichever is greater." Before proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of section 9 as they stood before their amendment. Under the unamended provisions, a person before filing an appeal was required to pay such amount of tax as was admitted by him and as might be due from him, whereas under the amended provision the appeal had to be filed accompanied by satisfactory proof of payment of tax in respect of which the appeal has been preferred. The Sales Tax Tribunal found that the assessee had made import of kerosene oil against form C, which was filed along with the statement of account before the assessing authority. The Tribunal also recorded a categorical finding, that as a matter of fact, the assessee had not admitted any tax liability on the turnover of imported kerosene oil, during the course of assessment proceedings before the assessing officer or in the memorandum of appeal filed before the first appellate authority. In the opinion of the Tribunal, non-admission of the tax liability on the part of the assessee was immaterial, inasmuch as, its admitted liability could be taken to be to which the assessee was legally liable and that would be the amount due, which the assessee was required to deposit in order to maintain the appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case that the assessee neither in his written statement nor at any time during the proceedings before the assessing authority admitted any amount payable as tax. Thus, there was no amount of tax admitted by him, before the assessing authority under the proviso to section 9(1) of the U.P. Sales Tax Act, as it stood then. It was, however, contended by the learned counsel for the Sales Tax Commissioner that unless the non-payment of the tax due is bane, the assessee is bound to deposit the tax due as a condition for maintainability of the appeal against the assessment order. We do not agree with this submission. The proviso to section 9(1) of the Act, as it stood then, in our judgment, contemplates the factuality, i.e., what happened before the assessing authority, and not the reality, i.e., under the law a certain amount of tax was due. The applicability of the proviso to section 9(1) of the Act, to our mind, will not depend upon the motive of the assessee or his intention. So long as in the return filed by the assessee or during the proceedings, no tax as due is admitted by the assessee that would clinch the matter in his favour in regard to the maintainability of the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porium [1976] 38 STC 247 (All); 1976 UPTC 58 was rendered after taking notice of the case in Kanpur Vanaspati [1973] 32 STC 655 (SC); 1973 UPTC 685 (SC). As the decision of the Tribunal on the question about the maintainability of the assessee's appeal runs counter to the law laid down by this Court in the case of Mangala Emporium [1976] 38 STC 247; 1976 UPTC 58, the same cannot be sustained. Therefore for the reasons given earlier, the Tribunal was wrong in thinking that the assessee's appeal before the Assistant Commissioner (Judicial) was not maintainable on account of non-payment of tax on the turnover of ex-U.P. purchases of kerosene oil. My decision on the first contention discussed above, is sufficient to dispose of this revision, but as the case was also debated on an alternative plea, it would be only fair to notice the same and to deal with it on merits. As an alternative case, it was contended, while the appeal was still pending before the Assistant Commissioner (judicial), the full tax was deposited, therefore, the appeal could not have been thrown out unless the relevant authority came to the conclusion, that there was no sufficient ground for making the belated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanying it that appeal can be said to have been preferred only when proof of payment of tax is furnished......... operation and the question will arise whether there has been sufficient cause for not preferring the appeal within the statutory period. The correct approach is to treat the appeal as having been preferred on the date on which proof of payment of the tax was furnished and then to see whether under sub-section (6) of section 9 there was sufficient cause for excusing the delay in preferring the appeal." The reasoning of the Tribunal, that law prescribes a stage for deposit of admitted tax and the maintainability of the appeal was impaired irretrievably for failure to deposit the admitted tax in time, cannot be accepted, in view of the decision in Lalta Prasad's case [1972] 29 STC 201 (SC). It appears the Tribunal was influenced in its decision by another decision of the Supreme Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range [1968] 21 STC 154, where the word "entertain" used in the proviso to section 9(1) was interpreted to mean the first occasion on which the court takes up the matter for consideration. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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