OAK, C.J. - (1.) THIS petition under Article 226 of the Constitution arises out of proceedings under the U.P. Sales Tax Act, 1948 (hereinafter referred to as the Act). Messrs Janta Cycle and Motor Mart, Kanpur, are the petitioner. The Assistant Commissioner (Judicial), Kanpur, is respondent No. 1.
(2.) THE petitioner is a dealer at Kanpur dealing in cycles and cycle parts. On 29th August, 1966, the Sales Tax Officer, Kanpur, passed an assessment order for the year 1964-65. The petitioner's net turnover was fixed at Rs. 2,60,000. A sum of Rs. 12,940 was assessed as sales tax payable by the dealer. The petitioner filed on 19th September, 1966, an appeal against the assessment order, dated 29th August, 1966. According to the memorandum of appeal the amount of sales tax admitted by the appellant was Rs. 1,612.91. By this time the appellant had deposited a sum of Rs. 1,610.91 as sales tax. The amount so deposited fell short of the amount of admitted tax by Rs. 2. The appellant deposited an additional sum of Rs. 5 in January, 1967. When the appeal came up for hearing before the Assistant Commissioner (Judicial), Kanpur, on 1st March, 1967, it was urged for the Sales Tax Officer that the appeal ought to be rejected on the ground that proof of payment of the admitted tax did not accompany the memorandum of appeal. This contention was accepted by the appellate authority. There was an application by the appellant under section 5, Indian Limitation Act, for condoning delay. It was held that section 5, Indian Limitation Act, could not be pressed into service for condoning non-fulfilment of the condition prescribed by the proviso to section 9 of the Act. In the result the Assistant Commissioner dismissed the appeal on 1st March, 1967, on the ground that it was not maintainable. The present writ petition by the dealer is directed against the appellate order of respondent No. 1, dated 1st March, 1967. When the writ petition came up for hearing before a Division Bench of this Court it was noticed that there was a conflict of opinion between Division Benches of this Court as regards the meaning to be given to the word "entertained" appearing in the first proviso to sub-section (1) of section 9 of the Act. The case was therefore referred to a Full Bench. Section 9 of the Act provides for appeals. Sub-section (1) of section 9 states :- "Any dealer objecting to an order allowing .............. or to an assessment made under section 7 ...... may within 30 days from the date of service of the copy of the order or notice of assessment, as the case may be, appeal to such authority as may be prescribed : Provided that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, or of such instalments thereof as may have become payable : Provided, secondly .................." Rules have been framed under the Act. Rule 66 deals with contents of memorandum of appeal. Sub-rule (2) of rule 66 states : "The memorandum of appeal shall be accompanied by adequate proof of payment of the fee payable and a certified copy of the order appealed against and the chalan showing deposit in the treasury of the tax admitted by the appellant to be due, or of such instalments thereof as might have become payable." The question for consideration is whether the petitioner complied with the requirements of the first proviso to sub-section (1) of section 9 of the Act and sub-rule (2) of rule 66, when it appealed against the assessment order dated 29th August, 1966. The decision of this case turns largely upon the meaning to be given to the word "entertained" appearing in the first proviso to sub-section (1) of section 9 of the Act.
(3.) THE word "entertained" also appears in the proviso to Order 21, rule 90, Civil Procedure Code, as amended by this Court. That proviso runs thus : "Provided that no application to set aside a sale shall be entertained - (a) ........................... (b) unless the applicant deposits such amount not exceeding twelve and half per cent. of the sum realised by the sale or furnishes such security as the Court may, in its discretion, fix ........." ;