Grover, J. - (1.) This is an appeal by certificate from a Judgment of the Allahabad High; Court in which the main point involved relates to the provisions of Section 9 of the U. P. Sales Tax, Act, 1948, hereinafter called the 'Act'.
(2.) The facts lie in a narrow compass. Lalta Prasad Khinni Lal a Hindu undivided family which is the assessee carried on business of manufacturing oils. For the assessment year 1963-64 it was assessed to sales tax under the Act by an order dated July 28, 1965. The assessee had been filing its quarterly returns and had deposited a sum of Rs. 3,153.01 which was the admitted amount of its tax liability. The Sales tax Officer, however, made an assessment enhancing the turnover which resulted in increase of the amount of tax. The assessee filed an appeal on October 21, 1965 which was three days before the period of limitation prescribed for filing the appeal was to expire. There was some difficulty about encashment of a cheque which had been deposited along with the rest of the cash amount towards payment of the amount of tax the liability for which stood admitted. The total payment was not made of the entire amount until May 27, 1966, when the treasury challan was produced. The assessee filed an application under Section 5 of the Indian Limitation Act praying for condonation of delay, if any, in filing the appeal. The Assistant Commissioner (Judicial) Sales Tax rejected the memorandum of appeal as defective on the ground that the deposit of the amount of tax admitted to be due had not been made within the period of limitation and that the delay in doing so could not be condoned under Section 5 of the Limitation Act.
(3.) The assessee filed a petition under Article 226 of the Constitution in the High Court challenging the order of the Assistant Commissioner (Judicial) Sales Tax. That petition was dismissed on the ground that although the appeal was filed within time there was delay in making the necessary deposit of the admitted tax and that delay could not be condoned under Section 5 the Limitation Act.;