COELHO BROTHERS Vs. STATE OF MYSORE

JUDGEMENT

(1.) These are two revision petitions under S.23(1) of the Mysore Sales Tax Act, 1957, (hereinafter referred to as the 'Act') read with S.9 of the Central Sales Tax Act, 1956. The petitioner who is a dealer in tiles was assessed to tax under the Central Sales Tax Act, 1956 for the assessment years 1965-66 and 1966-67. The assessing authority levied tax at the penal rate of 10 per cent since the petitioner did not produce the C Forms in respect of his sales. The petitioner paid the undisputed tax at 2 per cent and then preferred appeals before the Deputy Commissioner of Commercial Taxes, Mangalore, questioning the levy at 10 per cent. Along with the appeals, he filed applications for stay of collection of the disputed tax amounts. In his appeal petitions, the petitioner stated that he was not given adequate opportunity to produce the relevant C Forms; he produced the said C Forms along with the appeal petitions. The Deputy Commissioner of Commercial Taxes by his orders dated 24-12-1969 virtually rejected the applications for stay granting time to pay the dispued tax amounts on or before 12-3-1969 failing which it was ordered that the appeals would be rejected without further notice. Against the said orders, the petitioner preferred two appeals before the Sales Tax Appellate Tribunal being STA. Nos.73 and 74 of 1969. The Tribunal being of the view that the orders made by the Deputy Commissioner of Commercial Taxes were not appealable, dismissed the appeals. The Tribunal also expressed the view that the orders made by the Deputy Commissioner cannot be characterised as capricious or arbitrary. Against the said orders of the Tribunal, the petitioner has preferred the above revision petitions before this Court.

(2.) Section 22 of the Act provides, inter alia, for an appeal to the appellate Tribunal, against an order passed by the Deputy Commissioner under S.20. The question is whether an order passed by the Deputy Commissioner refusing to entertain an appeal unless the disputed tax is paid is an order made under S.20 of the Act appealable under S.22. S.20(3) reads:

(3.) The effect of the proviso to sub-sec. (3) of S.20 is that an appeal against the order of assessment will not be entertained unless the appeal is accompanied by saisfactory proof of the payment of the tax assessed, but the appellate authority is empowered to entertain the appeal for reasons to be recorded in writing without the payment of tax on furnishing security to its satisfaction. Apart from S.20(3), there is no separate provision for staying the assessment order or the collection of the disputed tax amount. When the Deputy Commissioner made the orders to the effect that the appeals will not be entertained unless the disputed tax amounts were paid before a particular date, he was purportng to exercise his powers under the proviso to sub-sec. (3) of S.20. Where the Deputy Commissioner rejects the request for entertaining the appeal without the payment of the tax amount, that is clearly an order made under S.20(3) of the Act. The order of the Deputy Commissioner is in effect an order of rejection of the appeals for non-payment of tax along with the appeal petition and such an order is clearly appealable under S.22.