MEHROTRA, J. - (1.) THE petitioner-firm is a dealer registered under the Assam Sales Tax Act, 1947. For the return period ending on 30th September, 1956, the petitioner was assessed to sales tax of Rs. 1,266 and odd by the Superintendent of Taxes, Gauhati. An appeal was filed on 7th February, 1957, against his order dated 4th January, 1957, under section 30 of the Assam Sales Tax Act, 1947, hereinafter called the Act to the Assistant Commissioner of Taxes, Assam. The petitioner, under protest affixed a court-fee stamp of Rs. 10 to the memorandum of appeal as required by the Assam Court-fee (Amendment) Act, 1950 : but paid no fee as required under rule 74 of the Assam Sales Tax Rules, 1947. It is contended by the assessee that rule 74 of the Assam Sales Tax Rules was ultra vires and consequently no fee could be demanded from it under the said rule. The Assistant Commissioner of Taxes rejected the appeal for non-compliance with rule 30 of the Assam Sales Tax Rules, hereinafter called the rules, by his order dated 3rd June, 1957. A petition was filed by the assessee before the Board of Sales Tax, Assam, for reference, which was rejected. An application was thereafter made to this Court under section 32(5) of the Act, and the Board was directed to state the case and refer questions of law arising out of the order of the Assistant Commissioner of Taxes, to this Court. The following questions of law have been referred to this Court : "(i) If in the circumstances of the case, the Assistant Commissioner of Taxes was right in rejecting the appeal on the ground that it was not in compliance with rule 30 of the rules framed under the Act ? (ii) If, in view of the amendment of the Court-fees Act, the provisions of rule 74 are ultra vires ? (iii) If the Assistant Commissioner of Taxes was competent to entertain the appeal ?"
(2.) THE Board has suggested that the answers to questions (i) and (iii) should be in the affirmative and that to question (ii) should be in the negative. Rule 29 of the Assam Sales Tax Rules provides that the memorandum of appeal shall be in Form No. 13, and rule 30 provides that it shall be accompanied by a certified copy of the order appealed against and by the fee prescribed in rule 74. Rule 31 lays down that the memorandum of appeal shall be signed, verified and endorsed by the appellant or his agent to the following effect : (a) that the tax not in dispute has been paid, and (b) that to the best of his knowledge and belief, the facts set out in the memorandum are true. Rule 32 then provides that where an appellant does not comply with any of the requirements of rules 29, 30 or 31 in presenting the appeal, it may be summarily rejected. Rule 74 runs as follows : "Fees. - The following fees shall be payable - (a) upon a memorandum of appeal against, or upon a petition for revision of, an order of assessment ..... Five per cent. of the amount of tax in dispute, subject to a minimum of one rupee and to a maximum of one hundred rupees; (b) upon a memorandum of appeal against, or upon a petition for revision of an order of penalty ..... Rupees two; (c) upon a petition for reference ..... Rupees five; (d) upon a petition for revision of any other order or upon any other miscellaneous petition ......... Rupee one; (e) for a duplicate copy of a certificate of registration ..... Rupees two." It is not disputed that the fee prescribed by rule 74 was not paid along with the memorandum of appeal. There was, therefore, non-compliance with the provisions of rule 30, and under rule 32, the appeal was thus rightly dismissed. The contention of the petitioner, however, is that rule 74 is ultra vires and consequently there was no violation of rule 30 in not depositing the fee required under rule 74.
(3.) THE validity of rule 74 is challenged inter alia on the grounds, firstly, that section 52(1) of the Act, in so far as it authorises the State Government to frame rules providing for levy of fee on appeals, references and revisions is ultra vires as an excessive delegation; and secondly, that section 52(1) of the Act only authorises the State Government it make rules for payment of fees on appeals, references and revisions, but rule 74 of the rules goes beyond the section inasmuch as it provides for levy of fees which has no relation to the services rendered and is consequently a tax and not a fee. Thirdly, it is contended that the Assam Legislature amended the Court-fees Act in the year 1950, by which the following clause in the second column of Article 11 of the Second Schedule has been inserted : "(c) to a High Court in miscellaneous revenue matters except (d) below or to an appellate authority prescribed under the Motor Vehicles Act, 1939, or to an appellate authority prescribed under the Assam Sales Tax Act, 1947 ..... Ten rupees." ;