D. S. Sinha, J. - (1.) This Full Bench, on a reference by a Division Court, is called upon to consider and decide the following question. "Whether on a true interpretation of the provisions of S.9(1-B)(b) of the U.P. Sales Tax Act the deposit of 20 percent of the assessed tax is necessary in a situation when neither any return has been filed by the assessee nor any tax liability has been admit ted by the assessee at any stage of the proceedings.".
(2.) Material part of S. 9 of the U.P. Sales Tax Act, 1948, hereinafter called 'the Act', is as below : "Section 9, Appeal. (1) Any dealer or other person aggrieved by an order made by the Assessing Authority, other than an order mentioned in S. 10-A, may, within thirty days from the date of service of the copy of the order, appeal to such authority as may be prescribed : Provided that where the disputed amount of tax, fee or penalty does not exceed one thousand rupees, the appellant may, at his option, request the Appellate Authority in writing for summary disposal of his appeal, whereupon the Appellate Authority may decide the appeal accordingly. (1-A) The manner and procedure of summary disposal of appeal shall be such as may be prescribed. (1-B) No appeal against an assessment order under this Act shall be entertained unless the appellant has furnished satisfactory proof of the payment of not less than - (a) the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns filed by him or at any stage in any proceedings under this Act, whichever is greater where all the returns for the assessment year have been filed, or (b) the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act, or twenty percent of the amount of tax or fee assessed, whichever is greater, where some of the returns for the assessment year have not been filed or no return has been filed for such year : Provided that the Appellate Authority may, for special and adequate reason to be recorded in writing, waive or relax the requirement of the Clause (b) of this subsection in so far as it relates to deposit of twenty percent of the amount of tax or fee assessed.
(3.) It appears that the petitioners were assessed to sales tax under the provisions of the Act. Aggrieved by the assessment, the petitioners preferred appeal u/ S. 9 of the Act. Alongwith the appeal they also applied for waiver of the requirement of cl. (b) of sub-s. (I -B) of S. 9 of the Act with regard to deposit of 20 percent of the amount of tax assessed. In exercise of its power under proviso to sub-s. (1-B) of the Act, the Appellate Authority called upon the petitioners to deposit 10 percent of the disputed tax and relaxed the requirement of cl. (b) of sub-s. (1-B) of S. 9 of the Act relating to remaining 10 percent of the disputed tax. The petitioners were not satisfied with the relaxation of ten percent of the disputed tax granted by the Appellate Authority and they filed second appeal before the Sales Tax Tribunal under sub-s. (2) of S. 10 of the Act praying for total relaxation of the requirement of deposit of twenty percent of the disputed tax for entertaining the appeal. The Tribunal allowed the appeal partly and directed the petitioners to deposit five percent of the disputed tax for the purpose of maintaining the appeal u/S. 9 of the Act. The orders passed by the Tribunal as well as the Appellate Authority are under challenge in the writ petition.;