GULATI,J. - (1.) UNDER S. 11(4) of the U.P. ST, Act, the Addl. Judge (Revisions) Sales-tax, Varanasi has submitted this statement of the case and has referred the following question of law for the opinion of this Court- "Whether on the facts and in the circumstances of the case, the Revising Authority was right in its view that the delay in depositing the admitted tax for purposes of S. 9 of the UP ST Act could not be condoned, even if the delay in filing the appeal was condoned ?"
(2.) THE assessment year involved in 1965-66. Copy of the assessment order and notice of demand was served on the assessee on 17th March, 1970. The appeal had to be filed within 30 days. The assessee filed the appeal six days beyond time i.e. on 23rd April, 1970. Under S. 9 of the Act he was also required to deposit along with the appeal the admitted tax. The assessee had admitted a tax liability of Rs. 451.18 P. but he deposited a sum of Rs. 207.82 only within 30 days. The remaining amount was deposited when the appeal was filed. The Appellate Authority, on the basis of a decision of this Court in the case of Janta Cycle Motor Marts vs. Asstt. Commissioner (Judicial) Sales-tax & Anr. 22 STC 94 held that S. 5 of the limitation Act was not applicable with regard to the deposit of the admitted tax and, as such, the delay in depositing the admitted tax could not be condoned. The appeal was accordingly dismissed as incompetent. The assessee then preferred a revision petition under S. 10 of the U.P. ST Act before the Revising Authority. The Revising Authority also took the same view but it held that at the same time there was no sufficient ground for condoning the delay in preferring the appeal as the appeal could be preferred through the counsel or any other competent person in case of illness of the Secretary-cum-Manager. In the opinion of the Revising Authority assessee acted negligently and the cause shown by him for the condonation of delay was insufficient. It is true that the Supreme Court has in the case of Lalta Prasad Khinnilal vs. Asstt. Commissioner (Judicial) 29 STC 201 overruled the decision of this Court in the case of Janta Cycle Motor Marts (supra) and has held that the delay in depositing the admitted tax and the delay in filing the appeal can be condoned if sufficient cause is shown. In the instant case, however, we find that the Revising Authority has dismissed the revision on merits also holding that the cause shown for the delay in filing the appeal and depositing the admitted tax was not sufficient and the assessee was negligent. This is a finding of fact and we cannot say that the Revising Authority has committed any error of law.
(3.) HOWEVER , we find that the question is not properly worded inasmuch as the Judge (Revisions) never held that the delay in depositing the admitted tax for the purposes of S. 9 of the UP ST Act could not be condoned even if the delay in filing the appeal was condonable. He held on facts that the delay in filing the appeal as also in depositing the admitted tax had not been properly explained. We accordingly re-framed the question as under :- "Whether on the facts and in the circumstances of the case, the Revising Authority was right in its view that the delay in depositing the admitted tax could not be condoned ?" and answer the same in the affirmative in favour of the Department and against the assessee. We, however, make no order as to the costs.;