Kossar Ahmad Qureshi, J. - (1.) THIS is an appeal preferred by the appellant against the order dated 30 -06 -2009 passed by the Ld. Dy. Commissioner, Sales Tax (Appeals) (Appellate Authority) Jammu in appeal No. 24/ST/T/J. The Appellate Authority has dismissed the appeal of the appellant summarily on the ground that the appellant has not filed proof of payment of 20% of the assessed tax and 50% of the penalty imposed in the order impugned. Accordingly to the Assessing Authority this is required under clause (c) of the 2nd proviso of Section 11 of the J&K General Sales Tax Act, 1962. The appellant in appeal before this Tribunal has now assailed the order of the Appellate Authority on the grounds inter alia, that appellant brought it to the notice of the Ld. Dy Commissioner, Sales Tax (Appeals), Jammu that the appeal has been filed by him under section 11 of the J&K GST Act, 1962 for the accounting period 2002 -03, 2003 -04 and 2004 -05 when there was no such condition or any provision in that section under which the Ld. Appellate Authority could insist pre -deposit of 50% of penalty imposed or 20% of the assessed tax for the purposes of entertainment of appeal.
(2.) THE moot question requiring consideration is whether the order of the Appellate Authority can be maintained on the reasoning projected therein, i.e. Whether the appellant was obliged to file proof of payment of 50% of the penalty or 20% of the assessed tax imposed on him by the Assessing Authority, as per the requirement of clause (c) of the 2nd Proviso to J&K Sales Tax Act, 1962. In order to have a proper understanding of the matter it will be appropriate to go direct to the Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962. The Text of the section is: - Section 11: - (1) A dealer or any other assessee objecting to an order passed by the Assessing Authority or any other officer authorized under section 15A, other than the Deputy Sales Tax Commissioner, may within 30 days from the date on which he is served with the notice of demand, appeal to the appellate authority or if the order is made by the Deputy Commissioner, to the Commissioner; Provided that the Appellate Authority may admit an appeal after the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. Provided further that no appeal shall be entertained by the said authority unless it is satisfied that: - (a) where all the returns for a year have been filed, the amount of tax due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns filed by him or at any stage in any proceedings under this Act, whichever is higher, has been paid; or (b) Where some of the returns for a year have not been filed or no return has been filed for such year, the amount of tax due under this Act, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act or 20% of the amount of tax assessed, whichever is higher, has been paid; or (c) in case the appeal is against the imposition of penalty, 50% of the penalty levied has been paid; [Provided that the Appellate Authority may, for reasons to be recorded in writing, stay the recovery of the disputed amount of tax and penalty. However, the stay will not cover the amount of tax and penalty payable under clauses (a), (b) and of the 2nd Proviso] *Explanation: - Nothing in this sub -section shall apply to the cases where the Commissioner in exercise of the powers vested under Section 8 makes an order extending the date of payment. From the perusal of the Section 11 given above it comes to the fore that the deposit of 50% of the penalty, where the appeal is against the order of imposition of penalty, is a statutory requirement, the intention being to ensure that the appellant is seeking the remedy in good faith, with an honest intention and not for the heck of it. It will be recalled that sub -section (1) of Section 11, supra, was substituted first by Act No. XX of 1981, Act No. X of 1997 dated 15 -05 -1997 and again substituted, subsequently vide Act No III of 1988 dated 06 -05 -1998 and the provisos and explanation were inserted vide Act No.XIII of 2000. Resort can be had in this behalf to the judgment delivered, by this Tribunal, in M/s Satnam Impex (P) Ltd., Bakshi Nagar, Jammu, the relevant excerpts of which are given below: - On the second ground that the appellant has failed to deposit 50% of the penalty imposed it was stated by Mr. Pargal, counsel for the appellant that the appeal had been filed by the appellant under section 11 of the J&K GST Act, 1962 for the accounting year 1998 -99 and there was no condition or any provision contained in Section 11 of the J&K GST Act, 1962 as may have been inforce for the year 1998 -99. Whereby the Appellate Authority could insist on pre -deposit of 50% of the penalty imposed or 20% of the assessed tax for the purposes of entertainment of an appeal. Dwelling further, Mr. Pargal submitted that the present provision whereby the50% of the penalty imposed or the 20 % of the tax assessed is required to be pre -deposited before filing of an appeal under section 11 of the J&K GST Act, 1962 was introduced on 14 -11 -2000 vide Act No.XIII of 2000. Immediately prior to the above amendment/introduction the relevant provision as contained in the J&K GST Taxation Laws (Amendment) Act 1998 Act No. III of 1998 of 6th May, 1998) whereby clause(l) of Section 11 of the J&K GST Act, 1962 (ACT XX of 1962) was substituted read as under: - (1) For Clause (i), the following shall be substituted, namely: - A dealer or any other assessee objecting to an order passed by the Assessing Authority or any other officer authorized under section 15A, other than the Deputy Sales Tax Commissioner, may within 30 days from the date on which he is served with the notice of demand, appeal to the appellate authority or if the order is made by the Deputy Commissioner, to the Commissioner;
(3.) THE appellant was afforded an opportunity to explain the reasons for failure to comply with the said statutory requirements by the Appellate Authority vide Nonces No. 176/175/174/DCJ/AP/ST/2008 -09/2569/2570/2571 dated 02 -01 -2009. Shri Sanjay Sharma counsel for the appellant appeared on 24 -01 -2009, 21 -02 -2009, 29 -05 -2009 and 27 -06 -2009 and seeking time to do the needful but the appellant has failed to comply.;