Satish Chandra, J. - (1.) Aggrieved against the assessment orders passed under the U. P. Sugarcane (Purchase Tax) Act, 1961 in respect of the months of December 1970, January, February and March 1971 the petitioner filed a single appeal. The appeal was filed within the prescribed period of limitation from the date of the intimation of the assessment order, but the memorandum of appeal was not accompanied by proof of payment of the tax admitted by the appellant to be due from him as required by the proviso to Sec. 3(5) of the Act. At the hearing of the appeal it was submitted on behalf of the petitioner that he may be permitted to deposit the admitted tax and the appeal be heard on merits after condoning the delay. The Assistant Commissioner-Cum-Appellate Authority held that there is no provision in the U. P. Sugarcane (Purchase Tax) Act, 1961 applying Sec. 5 of the Limitation Act to proceedings under it. Section 3(5) which provides for an appeal does not authorise condonation of delay. On this view the appeals relating to the assessment orders for the months of December 1970, January and February 1971 were dismissed as, barred by time. The appeal relating to March 1971 was dismissed on merits.
(2.) In the present writ petition the orders holding that the appeals were barred by time hive been challenged.
(3.) Sub-sec. (5) of Section 3 provides for an appeal to be filed within thirty days of the intimation of the order. The proviso says : "Provided that (except in the case of tax recoverable in accordance with Section 3-A) no appeal shall be entertained unless it is accompanied by satisfactory proof of payment of the amount admitted by the appellant to be due from him." The question is as to the significance of the word "entertained" with reference to the appeal. The other question is whether the proviso requires the payment of the admitted tax within the prescribed period of limitation. In Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I. Sales Tax, Kanpur Range, Kanpur 21 S.T.C. 154 the Supreme Court constructed a similar provision in Section 9 of the U. P. Sales Tax Act. It held that "entertainment" means the point of time when the appeal is being considered for the first time when the Court takes up the matter for consideration for the first time, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. Thus the payment of the admitted tax within the prescribed period of limitation for an appeal is a mandatory condition though the production of satisfactory proof of its payment is directory in the sense that such proof may be produced before the Appellate Authority, till the time when the appeal is taken up for the first time. In the present case the petitioner had not paid the admitted tax even till the time when the appeal was taken up for consideration. By that date the prescribed period of limitation for the appeal had long expired. The requisite mandatory condition not having been complied with the appeal was incompetent even on the date when it was taken up for hearing.;