LAKSHMIRATAN ENGINEERING WORKS LIMITED Vs. ASST COMMISSIONER JUDICIAL I SALES TAX KANPUR RANGE KANPUR

JUDGEMENT

(1.) This is an appeal by special leave against an order 2/3 April, 1967, of the Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur by which the Assistant Commissioner rejected as defective the memorandum of appeal filed by the present appellant against the assessment order passed by the Sales Tax Officer (S-1) Kanpur. The defect, according to the Assistant Commissioner, was that the memorandum of appeal (which had been filed well within time) was not accompanied by the challan showing the deposit of admitted tax under Section 9 of the Uttar Pradesh Sales Tax Act, 1948. The appellant did not file an application for revision and did not also invite a reference to the High Court of Allahabad but came direct to this Court by special leave which was granted by us on August 23, l967. At the first hearing of the petition, the State of Uttar Pradesh represented by Mr. O. P. Rana objected to the grant of special leave inasmuch as the other provisions under which remedy could be obtained under the Sales-tax Act had been by-passed. At that time, we overruled the objection and in the course of this judgment, we shall briefly indicate the reasons which had then prevailed with us.

(2.) The facts of the case are as follows :

(3.) The short question in this case is whether having made the deposit even before the appeal was filed and well within the period of limitation, the assessee could be deprived of his right of appeal under Section 9 of the Act. Alternatively it is to be considered whether the proof of the payment of the admitted tax had to accompany the memorandum of appeal as required by Rule 66 (2) and on failure to furnish such proof, the appeal itself became incompetent. In support of his order the Asstt. Commissioner relied on a decision of the Allahabad High Court reported in Swastika Tannery of Jaimu v. Commissioner of Sales-tax, U. P., Lucknow, 1963-14 STC 518 (All.) in which the learned Chief Justice of that Court and another learned Judge have laid down that the proof of Payment must be as required by the rules and, therefore, the memorandum of appeal ought to be accompanied by the Challan showing payment of tax before the appeal can be said to be competent. We shall refer to that ruling presently.