COMMISSIONER OF SALES TAX Vs. GANESH ABHUSHAN BHANDAR

JUDGEMENT

(1.) This is a reference under Section 25(1) of the Bihar Sales Tax Act, 1947, at the instance of the Commissioner of Sales Tax, Bihar. The relevant period involved in the assessment out of which this reference arises was the 1st of April, 1956, to the 30th of July, 1958. The assessment was under Section 13(5) of the Act on the 16th of March, 1960, and having aggrieved by that he preferred an appeal before the Assistant Commissioner of Commercial Taxes on the 16th of September, 1960, but he had not, by that time, deposited twenty per cent, of the tax levied on him as required under Section 24(1). The appellate authority called upon him to give proof of the payment of the required amount of tax on the 11th of October, 1960. He was also reminded in that respect on the 9th of November, 1960. On the 10th of December, 1960, he produced a challan before the appellate authority in proof of his payment of Rs. 100 towards the sales tax and asked for time to pay the balance. The Assistant Commissioner, however, did not feel satisfied with the grounds made out by the assessee and he refused to give any further time to him- to make up the deficit in payment of the required amount of sales tax as a condition relating to the filing of his appeal against the assessment. He struck off the memorandum of appeal on that ground on the same day. Before the 5th of January, 1961, the assessee, however, paid the balance of the twenty per cent, of the tax and approached the appellate authority with an application to restore the appeal, in other words to review the order passed by him on the 10th December, 1960, rejecting the memorandum of appeal. The Assistant Commissioner again did not feel satisfied with the grounds mentioned by the assessee and refused to review his previous order. The assessee went in revision before the Deputy Commissioner of Commercial Taxes but without success. He approached the Board of Revenue where he was able to evoke their sympathy and got an order on 28th December, 1961, in his favour by which the appeal stood restored. The department asked for a reference and three questions were formulated for consideration of this Court as follows :-

(2.) Section 24 of the Bihar Sales Tax Act, 1947, to be referred to hereafter as the Act, provides for appeal, revision and review. In Sub-section (1) it is stated that no appeal shall be entertained by the authority unless he is satisfied that twenty per centum of the tax assessed or such amount of the tax as the appellant may admit to be due from him whichever is greater, has been paid. In Sub-section (2) it is provided that every appeal shall be presented within 45 days of the receipt of the notice of demand issued under Sub-section (4) of Section 14 but the authority before whom the appeal is filed may admit an appeal after the expiration of the said period if he is satisfied that the appellant has sufficient cause for not presenting the appeal within that period. Reading these two sub-sections there cannot be any doubt about the powers of the appellate authority to entertain an appeal beyond the prescribed period of limitation on being satisfied about the sufficiency of cause preventing the appellant from filing the appeal in time. If the appeal is filed within the prescribed period but the required amount of tax is not deposited by him, before the memorandum of appeal is presented but paid later within the period of limitation there will be no defect for which the appeal shall not be entertained. It will make no difference whether payment of tax is made prior or subsequent to the filing of the appeal if such payment is within the prescribed period of limitation and the filing of the appeal is also during that period. Suppose an assessee prefers an appeal within 45 days and asks for time to pay the required amount of tax as provided under the proviso to Sub-section (1) of Section 24 and the appellate authority is satisfied that there is sufficient cause shown by the assessee for extension of such time, he can grant time as he may think it necessary for payment of the tax. That will be also in the process of admission of an appeal after the expiration of the prescribed period of limitation. The discretion given in Sub-section (2) to Section 24 will include such circumstances.

(3.) In the present case, when an application was made for time to pay the tax on the 10th December, 1960, before the Assistant Commissioner of Commercial Taxes it was open to that authority either to grant or to refuse the prayer on a judicial consideration of the facts brought to his notice by the appellant. There cannot be any hard and fast rule as to how the discretion is to be exercised. That will depend upon the circumstances of each case. If the appellate authority refused to grant any time which would mean that he refused to admit the appeal because it was not properly presented in the sense that the required amount of tax was not paid within the prescribed period of limitation, that cannot be said not being exercise of the powers vested in him under Section 24, Sub-sections (1) and (2). No doubt that order is revisable by the higher authorities. That order is also reviewable by the same authority.