- (1.) THE petitioner carries on business at Amritsar and deals in karyana and vegetable oils and is registered as a dealer under the Punjab General Sales Tax Act, 1948 (hereinafter called the Act ). For the year 1962-63 he was assessed by the Assistant Excise and Taxation Officer because his turnover did not exceed five lacs of rupees. The final order of assessment was made on 20th February, 1964. On 3rd September, 1964, respondent No. 2 issued a notice to the petitioner under section 10 (7) of the Act to show cause why penalty should not be imposed in terms of that section. On 15th September, 1964, he imposed a penalty of Rs. 25,000 ex parte because the petitioner did not appear. Against that order, the petitioner filed an appeal before the Deputy Excise and Taxation Commissioner, Jullundur Division, who dismissed the appeal on 18th February, 1965, on the ground that the amount of penalty imposed on the petitioner had not been deposited before filing the appeal. Against that order, the present writ petition has been directed.
(2.) IT has been submitted that the proviso to section 20 of the Act, as was in force at the time the appeal was filed, only required the person filing the appeal to pay the amount of tax assessed and no mention was made of the amount of penalty that is levied. Under that proviso. therefore, the appellate authority was not correct in dismissing the appeal on the ground that the amount of penalty had not been paid before filing the appeal. In C. W. No. 2198 of 1964 decided on 16th December, 1964 (Maya Ram Bhatia v. K. K. Upal), Grover, J. (as his Lordship then was), observed as under : ". . . . . . . It would appear from the language of the proviso (to section 20) that it is not necessary even to deposit the amount of the penalty before the appeal would be entertained although it is obligatory to deposit the amount of tax assessed before an appeal can be entertained. It follows in the present case that the order imposing the penalty which has been impugned could be appealed against under section 20 even without the amount of penalty being deposited first before the appeal is entertained. Therefore, the remedy provided by section 20 is quite effective and could have been availed of by the petitioner. " It is thus apparent from the observations of the learned Judge that in an appeal against the levy of penalty the amount of penalty imposed is not required to be deposited before the appeal can be filed or heard against the order imposing the penalty. The Legislature realised the weight of these observations and amended the proviso to section 20 by Act 28 of 1965 by recasting it as under : " Provided that no appeal shall be entertained by such authority unless he is satisfied that the amount of tax assessed and the penalty, if any, imposed on the dealer, has been paid. "
(3.) THIS Act received the assent of the Governor of Punjab on 14th December, 1965, and was first published for general information in the Punjab Government Gazette (Extraordinary), Legislative Supplement, Part I, on 16th December, 1965. This proviso thus came into force after the enforcement of the said Act and could not govern the appeal filed before the amendment. Later on another amendment was made by the Punjab General Sales Tax (Amendment) Ordinance (1 of 1967), whereby section 20 of the Act was substituted for the previous section 20. Sub-section (5) of section 20, as enacted by the Ordinance, reads as under : " No appeal shall be entertained by an appellate authority unless such appeal is accompanied by satisfactory proof of the payment of the tax or of the penalty, if any, imposed or of both, as the case may be : Provided that if such authority is satisfied that the dealer is unable to pay the tax assessed or the penalty, if any, imposed or both, he may, for reasons to be recorded in writing, entertain an appeal without the tax or penalty or both having been paid or after part payment of such tax or penalty or both. " ;