- (1.) This is an appeal by special leave against an order 2/3 April, 1967, of the Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur by which the Assistant Commissioner rejected as defective the memorandum of appeal filed by the present appellant against the assessment order passed by the Sales Tax Officer (S-1) Kanpur. The defect, according to the Assistant Commissioner, was that the memorandum of appeal (which had been filed well within time) was not accompanied by the challan showing the deposit of admitted tax under Section 9 of the Uttar Pradesh Sales Tax Act, 1948. The appellant did not file an application for revision and did not also invite a reference to the High Court of Allahabad but came direct to this Court by special leave which was granted by us on August 23, l967. At the first hearing of the petition, the State of Uttar Pradesh represented by Mr. O. P. Rana objected to the grant of special leave inasmuch as the other provisions under which remedy could be obtained under the Sales-tax Act had been by-passed. At that time, we overruled the objection and in the course of this judgment, we shall briefly indicate the reasons which had then prevailed with us.
(2.) The facts of the case are as follows : The appellant had declared his turnover for the year 1964-65 at Rs. 370,941-7 p. on which the admitted tax under the Act came to Rs. 11,135-58 p. The Sales-tax authorities, however, assessed his turnover at Rs. 30 lakhs on which tax was calculated at Rs. 90.000. The appellant appealed to the Assistant Commissioner (Judicial) I Sales tax, Kanpur Range, Kanpur. His appeal was filed on May 16. 1966, the order of assessment and the demand notice having been served on him on April 16, 1966. The appeal was therefore filed within time. Section 9 of the Act provides that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due or of such instalments thereof as may have become payable. As is stated earlier, the admitted tax came to Rs. 11,135 58p. The appellant was required under this provision of law to give satisfactory proof, at the time of the entertainment of the appeal; that this tax was duly paid. It appears that the appellant had paid a greater portion of the tax even before the assessment order had been made and a balance of Rs. 99.99p. was due from him from the amount of admitted tax. This amount was deposited on April 26, 1966 before the appeal was filed by him. He did not however present any proof of such deposit, because there is a dispute in the case whether the assessee had shown proof of it to the munsarim or not. As the finding is that he had not shown it we shall proceed on the assumption that the assessee had not furnished proof at the time of the filing of the appeal that the balance of tax had been paid. It is on this premise that the present appeal has proceeded before us. On August 16, 1966, the assessee addressed a letter to the Sales-tax Officer and asked for a certificate of payment of tax and this certificate having been furnished he filed it on January 24, 1967 before the Assistant Commissioner. He also, as a matter of abundant caution, filed an application for condonation of delay under sec. 9 (6) of the Act read with Section 5 of the Indian Limitation Act. The order against which the present appeal has been brought before us was made on 2/3 April, 1967 and the appeal of the assessee was rejected, because in the opinion of the Assistant Commissioner. Section 9 of the Act read with Rule 66 (2) had not been complied with since no proof had been given along with the memorandum of appeal that the tax had been paid. Simultaneously, the application for condonation of delay was also dismissed. Against this order, the assessee has filed the present appeal.
(3.) The short question in this case is whether having made the deposit even before the appeal was filed and well within the period of limitation, the assessee could be deprived of his right of appeal under Section 9 of the Act. Alternatively it is to be considered whether the proof of the payment of the admitted tax had to accompany the memorandum of appeal as required by Rule 66 (2) and on failure to furnish such proof, the appeal itself became incompetent. In support of his order the Asstt. Commissioner relied on a decision of the Allahabad High Court reported in Swastika Tannery of Jaimu v. Commissioner of Sales-tax, U. P., Lucknow, 1963-14 STC 518 (All.) in which the learned Chief Justice of that Court and another learned Judge have laid down that the proof of Payment must be as required by the rules and, therefore, the memorandum of appeal ought to be accompanied by the Challan showing payment of tax before the appeal can be said to be competent. We shall refer to that ruling presently.;