M.C.Desai, C.J. - (1.) The Judge (Revisions), Sales Tax, U.P., has at the instance of an assessee referred to this Court for its opinion the following two questions: (1) Whether in the circumstances of the case, the defect about the failure of the applicants to deposit the admitted amount of tax as required by the second (sic) proviso to Section 9 was cured by the provisions of Rule 67(2) ? (2) (If the answer to the first question is in the affirmative) whether the service of the notice of the hearing of the assessment case was validly made on the applicants ?
(2.) The circumstances as stated in the statement of the case are as follows. An assessment order was passed ex parte under Sectiontion 7(3) of the Sales Tax Act and it was served upon the assessee on 24th September, 1953. Admittedly the assessee had a right of appeal against it and admittedly the last day on which he could file an appeal was 24th October, 1953. It actually filed an appeal on 12th October, 1953, with a challan for payment of Rs. 442-10-9. It had admitted its liability for payment of the tax of Rs. 510-1-3 and thus it did not pay Rs. 67-6-6 out of the admitted tax. The office report on the memorandum of appeal dated nth November, 1953, pointed out that the admitted tax of Rs. 67 and odd had not been paid by the assessee. Subsequently on 27th November, 1953, the assessee presented two challans, one dated 6th October, 1953, for Rs. 9-8-3 and the other dated 26th November, 1953, for Rs. 57-14-3. Admittedly the period of limitation of appeal had expired before 27th November, 1953. The Judge (Appeals) on 8th May, 1954, held that the appeal did not conform to the requirements of the first proviso to Section 9 and rejected it.
(3.) Sub-section (1) of Section 9 provides that any dealer objecting to an assessment order "may within 30 days from the date of service of the copy of the order..., appeal to such authority as may be prescribed : Provided that no appeal against an assessment shall be entertained unless it is accompanied by a satisfactory proof of the payment of the amount of tax admitted by the appellant to be due." Sub-section (2) provides that "the appeal shall be in the prescribed form and shall be verified in the prescribed manner." The Appellate Court is empowered by Sub-section (3) to confirm, reduce, enhance or annul the assessment or set aside the assessment and direct the assessing authority to pass fresh order. Under Sectiontion 20 the State Government have power to make rules to carry out the purposes of the Act, and provide for matters which are to be prescribed. In exercise of this power they have made Rules 65 to 68 regarding appeals. An appeal under Sectiontion 9 lies to the Judge (Appeals); Rule 65(2) provides that "every appeal shall be preferred in the form of a memorandum, written on watermark or any other stout paper", and Sub-rule (3) requires that "the memorandum of appeal shall be accompanied with a certified copy of the order appealed from and a spare copy of the memorandum." Sub-rule (1) of Rule 66 provides for the contents of the memorandum of appeal and Sub-rule (2) provides that it "shall be accompanied by a certified copy of the order appealed from and the challan showing deposit in the treasury of the tax admitted by the appellant to be due." Rule 67 requires that "the memorandum of appeal shall be presented by the appellant or his lawyer...or may be sent by registered post." If it is in order, the Judge (Appeals) is required to admit it and if it is not in order he may reject it or return it for correction and re-presentation within the time to be fixed by him. When he admits an appeal he is to fix the date for hearing of the appeal. These are the relevant provisions of law and the question before us is whether the Judge (Appeals) rightly rejected the memorandum of appeal on the ground that it was not accompanied by satisfactory proof of the payment of the admitted amount of the tax.;