9911796707
TMI Blog2000 (7) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax Tribunal, Haryana (hereinafter described as "the Tribunal"). 2.. The facts necessary for deciding the aforementioned question are that by an order dated December 27, 1995 (annexure P2), the Excise and Taxation Officer-cum-Assessing Authority, Yamuna Nagar, held the petitioner liable to pay Rs. 50,522 as tax for the year 1989-90. The petitioner challenged that order by filing an appeal under section 39(1) of the Act. Along with the appeal, he filed an application under proviso to section 39(5) of the Act for entertaining the appeal without pre-deposit of the assessed amount. The Joint Excise and Taxation Commissioner (Appeals), Ambala, accepted its request subject to the condition of furnishing surety bond to the satisfaction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y incorporation of the said condition. 4.. We have considered the respective submissions. Sub-sections (1), (2) and (5) of section 39 of the Act, which have bearing on the decision of this case, read as under: "39. Appeal.-(1) An appeal from every original order, including an order under section 40, passed under this Act or the Rules made thereunder shall lie,- (a) if the order is made by an assessing authority, officer in-charge of a check-post or barrier or an officer below the rank of Deputy Excise and Taxation Commissioner, to the Deputy Excise and Taxation Commissioner or such other officer as the State Government, may by notification, appoint; (b) if the order is made by the Deputy Excise and Taxation Commissioner or any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be communicated by the appropriate authority to the appellant, the period of sixty days shall commence from the date of receipt of the copy of the order by the appellant and in the case of an appeal against any other order made under this Act, the time spent in obtaining the certified copy of the order shall be excluded in computing the period of sixty days." 5.. An analysis of the provisions quoted above shows that ordinarily an appeal filed under section 39(1) of the Act cannot be entertained unless the amount of tax assessed and the penalty and interest, if any, imposed has been paid, but under first part of the proviso to sub-section (5) of section 39, the appellate authority can entertain the appeal without insisting on deposit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l without insisting on pre-deposit of tax, etc. The contrast in the language used in the two parts of the proviso to which Shri Goyal has drawn our attention does not, in our opinion, dilute the inherent nature of the power vested in the appellate authority to impose appropriate condition while granting exemption to the appellant from depositing the amount of tax assessed by the competent authority. 7.. De hors the above conclusion, we are inclined to agree with Shri Goyal that the view taken by the Tribunal about the requirement of furnishing bank guarantee or adequate security is not borne out from the language of first proviso to section 39(5) of the Act. It is one thing to say that the appellate authority can impose appropriate cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to section 39(5) of the Act and pass appropriate order in accordance with law. This shall be done within two months of the receipt of the copy of this order. 10.. Before parting with the case, we consider it necessary to observe that the order, annexure P5, passed by the appellate authority is extremely cryptic, arbitrary and is totally devoid of reasons. On the face of it, the order discloses total non-application of mind by the concerned authority to the statutory conditions enshrined in proviso to section 39(5) of the Act and we hope that while passing fresh order, the officer concerned will keep in mind that power under the proviso can be exercised only if the appellate authority is satisfied that the appellant is incapable of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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