PRAKASH KRISHNA, J. - (1.) THIS is an application to recall the order dated March 12, 2004 dismissing the revision at the time of the admission on the ground that it lacks merit. Heard the counsel for the parties and perused the record. A perusal of the affidavit filed in support of the revision apparently does not disclose any ground to recall the aforesaid order except that the following two questions of law were involved in the case: 1. Whether, under the said facts and circumstances of the case, the learned Trade Tax Tribunal as well as authority below were justified to register the appeal as defective, despite under the Sick Industrial Companies (Special Provisions) Act the revisionist company has been declared as sick unit and by the order of the State Government, the revisionist company was also under the scheme of 'deferment of the payment of tax'? 2. Whether, under the said facts and circumstances of the case, the order of the learned Tribunal as well as Deputy Commissioner (Appeals) were justified?
(2.) HEARD the counsel for the parties and perused the record. The aforesaid two questions are the verbatim reproduction of the questions of law as framed in the memo of revision. The order dated March 12, 2004 dismissing the revision was passed without giving any reasons therein, therefore, the matter was heard again at great length and after hearing the counsel for the parties I am proceeding to decide the case after giving reasons in support of my order. The facts of the case lie in a narrow campus. The dispute relates to the assessment year 1998 -99 (Central). As per the averments made in the affidavit the account books were accepted by the assessing authority. But due to non -submission of forms required under the Central Sales Tax Act, 1956 for claiming concessional rate of tax the demand of tax was created by the assessment order dated March 3, 2001. The said order has been sought to be challenged by filing an appeal under Section 9 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act'). The appeal was treated by the Deputy Commissioner (Appeals) as defective on account of the failure of the dealer applicant to deposit the admitted tax. Under Section 9(1B) of the Act deposit of the admitted tax by the appellant in the returns filed by him or at any stage of any proceeding is a condition precedent for the entertainment of the appeal. It provides that no appeal against the assessment order under the Act shall be entertained unless the appellant has furnished satisfactory proof of the payment of not less than the amount of tax or fee due under the Act on the turnover of sales or purchase, as the case may be, admitted by the appellant in the returns filed by him. There is absolutely no dispute that the appellant has not deposited the admitted tax before the entertainment of the appeal. The appellant took a stand before the first appellate authority that the State Government by its order dated August 22, 1996 permitted the payment of tax for the assessment years 1994 -95 to 1998 -99 in five instalments by the order beginning from April 30, 2000 to April 30, 2004. The Deputy Commissioner (Appeals) dismissed the appeal on the finding that in spite of the instalments granted to the appellant, it has failed to deposit any of the instalments and as such failed to comply with the statutory condition as specified in Section 9(1B) of the Act. This order was passed on April 18, 2001. In second appeal, the Tribunal has confirmed the order passed by the first appellate authority. The Tribunal has endorsed the findings of the first appellate authority. It has found that the counsel for the appellant could not state as to whether any out of five instalments has been paid by the dealer or not. Challenging its order the present revision was filed. The applicant's counsel has not controverted the observations made by the authorities below in their orders that the applicant has not deposited any of the instalments so far. What he contended in the recall application was that in view of the judgment of the Supreme Court that the sales tax cannot be recovered by coercive method in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, the order of the Tribunal is contrary to law and placed reliance upon the case of Tata Davy Ltd. v. State of Orissa : (1997)IILLJ989SC . The Supreme Court has considered entirely a different issue and, thus, the ratio of the Supreme Court is not at all applicable to the facts of the present case. The issue involved before the Supreme Court was as to whether the sales tax dues, under the Orissa Sales Tax Act, 1947 could be recovered from the industry concerned by a coercive method in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, without first seeking the consent of the Board in this behalf. In the present revision the challenge is not to any recovery proceeding under the U.P. Trade Tax Act, 1948, but the issue involved herein is about the maintainability of the first appeal in view of Section 9(1B) of the Act. The learned Counsel could not show me as to how and in what manner the ratio given in the case of Tata Davy : (1997)IILLJ989SC has any application to the facts of the present case. There appears to be no similarity of the facts and with regard to the points of determination in both the cases one in hand and another cited by the learned Counsel for the applicant. The learned Counsel for the applicant even in the recall proceedings was permitted to argue the revision at length, but could not show me any statutory provision or principle of law to give a go by to the provisions of Section 9(1B) of the Act in the facts of the present case.
(3.) IN the result there is no merit in the application. The application is dismissed.;