- (1.) THIS application in revision tinder sec. 14 of Rajasthan Sales Tax Act (hereinafter referred to as the Act) has been preferred by Registered dealer M/s Mahalaxmi Cotton Factory, and directed against an appellate order of the appellate Authority i. e. the Deputy Commissioner Sales & Taxation, Udaipur. We have heard the learned counsel for the parties and gone through the record carefully.
(2.) THE circumstances leading upto the revision are briefly these. THE petitioner is an owner of the cotton pressing factory by its clients. THE cotton duly pressed and baled is delivered back to its customers, in which process iron hoops and hessian cloth is used. This material i. e. the hessian cloth and iron hoops is supplied by the petitioner himself. For the year under assessment i. e. 1957-58, the assessing Authority (Assistant Commissioner Excise & Taxation, Bhilwara), found that the petitioner had pressed and baled about 60 bales charging from its customers Rs. 11/- per bale. THE learned assessing Authority also found Rs. 11/-charged by the petitioner could be split into two parts i. e. (a) Rs. 6/- charges for the pressing and bailing and (b) Rs. 5/- as the price charged for the hessian cloth and the iron hoops per bale. He accordingly assessed the petitioner's taxable turnover at Rs. 3005/- by his order dated 1. 6. 60 and by the same order he directed that the tax due on this turnover be recovered from the petitioners. From this order, the petitioner filed an appeal before the Appellate Authority (Dy. Commissioner Sales & Taxation, Udaipur ). Upon the presentation of this appeal the learned Dy Commissioner, passed the order which is sought to be revised by this application and communicated it to the petitioner. THE order may be reproduced here in its entirety; "in order to enable me to entertain your appeal, you are requested to please deposit a sum of Rs. 937. 66 in payment of the demand and produce the receipt of certificate in proof within a fortnight positively failing which your appeal will be summarily rejected. No further correspondence in this connection will be considered. " The learned counsel for the petitioner contends that the learned Dy. Commissioner Sales and Taxation, in making this order, has totally over-looked the 3rd Proviso to sub-section (1) of sec. 13 of the Act and has thereby committed an irregularity rendering his order open to revision. This proviso reads as follows: - "provided further that the appellate authority may, if it deems fit, for reasons to be recorded in writing, entertain an appeal without payment of the amount of such tax or on proof of payment of such smaller amount as it may direct. " The contention of the learned counsel for the petitioner is that the discretion given to the Appellate Authority in this proviso should have been exercised in his favour as circumstances existed justifying it. The learned Government Advocate, in reply, has made two submissions. His submission No. I is in the nature of a preliminary objection and is to the effect that the revision before us is incompetent. For this purpose he relies on second proviso to sub-sec. (2) of sec. 14. The relevant portion of this proviso reads: "provided further that no revision under this sub-section shall be entertained upon the application of a dealer; (a) if he could have appealed under sec. 13 and no appeal has been filed by him, or (b) if any appeal is pending before the appellate authority". According to the learned Government Advocate, the petitioner's appeal is pending before the Appellate Authority. We are unable to agree with this proposition. A proceeding can be said to be pending only when it is possible to take some action therein. In view of the pre-emptory order, which the appellate authority has made in this case, it is clear to our mind that nothing whatever is left in the appeal. The language of the order is clear and it leaves no room for doubt that the Appellate Authority has refused even to entertain the appeal unless the condition precedent of making the full payment of the assessed tax is fulfilled by the petitioner. The time allowed for this purpose was a fortnight from the date of the order i. e. 1. 6. 60. That period has elapsed and the order of the Appellate Authority has become final or absolute according to its terms and the appeal cannot be said to be pending. We, therefore hold that the revision is properly before us. In coming to the next contention of the learned Government Advocate, it shall be necessary to notice the history and scheme of sec. 13 of the Act. The learned Government Advocate's submission is that the language of the proviso, does not place any compulsory obligation on the Appellate Authority to entertain an appeal without payment of the tax or on proof of payment of such smaller amount as the Appellate Authority may direct. According to him, the appellate authority notwithstanding this proviso is still free to reject a request for exemption from the payment of the amount of tax by the appellant summarily and need give no reason. It is at this stage that the history of this section becomes relevant. The original see. 13 was enacted without this third proviso which has been inserted much latter by an amendment Act i. e. Rajasthan Act No. 9 of 1958. The proviso, therefore, provides an exemption to the general rule and enunciated in the original sec. 13 of the Act that no appeal would be entertained unless it was accompanied by a satisfactory proof of the payment of tax in respect of which the appeal had been preferred. The only subject of amending the law and investing the court with the power and authority to entertain appeal without such payment was to our mind, to mitigate a hardship which the appellants might feel and perhaps were actually feeling in complying with the law as it stood originally. It is true that with the insertion of proviso No. 3, the appellate authority is free to reject the request for entertaining an appeal without prior payment of that. But minimum compliance which the law expects is that the Appellate Authority would apply its mind to the facts of the case and then decide whether or not it would exercise this discretion in favour of the appellant, applying for this concession. The pre-emptory order which the learned Appellate Authority has made in this case makes it abundantly clear to our mind that the learned Appellate Authority has acted in complete dis-regard of this important provision of law. In fact it would not be too much to say that he has treated this provision of law as if it did not exist at all. And in doing so, the minimum which can be said is that he has acted in the exercise of his jurisdiction with serious material irregularity. We, are, therefore, left with no option but to accept this revision, set aside the order of the learned appellate authority and remand the case to him with the direction that he will first consider the request of the applicant praying for exemption from the deposit of the tax prior to the entertainment of the appeal and then proceed with the case further in accordance with law. .;