JANTA CYCLE AND MOTOR MART Vs. ASSISTANT COMMISSIONER J III SALES TAX KANPUR RANGE KANPUR

JUDGEMENT

(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 :-

(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 :