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TMI Blog2017 (11) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER ( Delivered by Hon'ble Sudhir Agarwal, J. ) 1. In both these writ petitions, petitioners are challenging validity of sub-section 3 of Section 12, as inserted by U.P. Entertainment and Betting Tax (Amendment) Act, 2009 (hereinafter referred to as Amendment Act, 2009 ), in U.P. Entertainment and Betting Tax Act, 1979 (hereinafter referred to as Act, 1979 ), providing a condition for pre-deposit of one-third of disputed amount and the entire undisputed amount of tax before entertaining appeal preferred by Assessee against order of assessment. 2. Section 12 (3), as inserted by amendment Act, 2009, reads as under: (3) No appeal shall be entertained by the State Government unless the proprietor has paid the undisputed amount of the tax and at least one-third of the disputed amount, assessed under this Act. 3. Petitioners have also prayed that order passed by State of U.P., rejecting their appeals for non-deposit of one-third of disputed amount be quashed and appellate authority be directed to decide their appeals without enforcing requirement of pre-deposit under Section 12 (3) of Act, 1979, as amended by Amendment Act, 2009. 4. Sri Devendra Mohan Shu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a self-assessment and pre-payment of tax by Proprietor of an entertainment for something attributable to him. The occasion to make assessment under Section 12 (1) arises only in certain conditions when aforesaid liability of self-assessment and payment of due tax stand failed on the part of a proprietor of an entertainment. Section 12(1) reads as under: 12. Assessment of tax. - (1) Where the Commissioner or the District Magistrate is satisfied that the proprietor of an entertainment, - (a) has failed to give information as required under sub-section (1) of Section 5; or (b) has failed to prepare or to submit true and full returns in the [prescribed forms or does not furnish return in respect of any entertainment within the stipulated time]; or (c) possesses or has used duplicate tickets; or (d) has fraudulently evaded or attempted to evade, the payment of tax due in any manner whatsoever, he shall, after giving the proprietor a reasonable opportunity of being heard, assess to the best of his judgment, the amount of the tax due from the proprietor, and may also impose a penalty not exceeding [twenty thousand rupees] : Provided that where either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond Legislative Competence. Statute was again amended by insertion of Section 152 A. Then fresh assessments were made whereagainst appeals were preferred before Chief Judge of Court of Small Causes, Ahmedabad, but held not maintainable for non-deposit of tax by appellants under Section 406 (2) (e) of Act, 1949. Thereafter writ petitions were filed challenging assessment on the ground that Deputy Commissioner was not competent to make assessment and also that the provision of pre-deposit of tax under Section 406 (2) (e) was bad. Writ petition were allowed by Gujrat High Court holding that Deputy Commissioner was not competent to make assessment and secondly it also struck down Section 406( 2) (e) being violative of Article 14. Under Section 406(2) (e) no appeal could have been heard against a tax unless amount demanded is deposited with Commissioner. However, there was a provision conferring power upon appellate Court, if in its opinion the deposit of amount by appellant will cause undue hardship, in its discretion, it could have dispensed with such deposit or part thereof, either unconditionally or subject to such condition as it may deem fit. Supreme Court held that condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of aforesaid provision, Court observed that right to appeal is granted by statute. When right is granted and such grant is with a condition, it means that substantive right to appeal is available in the manner as contemplated under statute and not otherwise. Right is conditional one and legislature in its wisdom has imposed that condition. No question of whittling down that right by an alteration, therefore, would arise. Court said: Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. 15. Supreme Court further held in Vijay Prakash D. Mehta and another (Supra): It is not the law that adjudication by itself following the rules of natural justice would be violative of any right-constitutional or statutory, without any right of appeal, as such, if the statute gives a right to appeal upon certain conditions, it is upon fulfillment of those condition that the right becomes vested and exercisable to the appellant. 16. There is a three Judges' jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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