GULSHAN TRADING COMPANY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE petitioner No. 1 is the business name and style in which the petitioner No. 2 carries on his business as commission agent in kirana. The petitioner No. 2 was assessed to sales tax of Rs. 50,880 for the assessment year 1969-70. He filed an appeal against the assessment order before the Assistant Commissioner (Judicial). The appeal is numbered 2455 of 1970. The appeal is still pending.

(2.) THIS petition owes its origin to certain provisions in the U.P. Sales Tax Act regarding grant of stay of recovery proceedings when an appeal is pending. Sections 9 and 10 of the Act are material for our purpose. These two sections were first amended by the U.P. Sales Tax (Amendment) Ordinance, 1970, and subsequently by the U.P. Sales Tax (Amendment) Act (3 of 1971). Section 9(1) confers a right of appeal. It has got two provisos. The first proviso enacts that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due or of such instalment thereof as may have become payable. The second proviso enacts that the appellate authority shall not exercise any powers or perform any other function except those conferred on or entrusted to him as such authority. Section 9(3) specifies the powers of the appellate authority. Section 10(1) creates the revising authority. Section 10(3)(i) enacts that the revising authority may for the purpose of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority call for and examine the record of such order and may pass such order as it may think fit. Section 10(3)(i) has three provisos. The first proviso enacts that no application in revision shall be entertained in any case where an appeal lay against the order but was not preferred. The second proviso is to this effect : ".... an application for stay of realisation of any amount of tax, fee or penalty, shall not be entertained by the revising authority or by any additional revising authority, unless an appeal or revision from the order of the assessing authority or the appellate authority, as the case may be, is pending before proper authority." The third proviso enacts that where the revising authority grants a stay of recovery of the amount of tax, fee or penalty, the applicant in revision shall furnish security to the satisfaction of the assessing authority concerned within such period as may be specified by the revising authority.

(3.) THE amending Act also amended sections 9 and 10. The proviso to sub-section (1) of section 9, introduced by the amending Act, provides that no appeal against the assessment order shall be entertained unless the appellant has furnished satisfactory proof of the payment of not less than the amount of tax or fee on the turnover of sales or purchases admitted by the appellant in the return filed by him or at a later stage in the proceedings before the assessing authority, whichever is greater, or the amount of tax or fee on the turnover of sales or purchases admitted at any stage in the proceedings before the assessing authority, or 20 per cent. of the amount of tax or fee assessed, whichever is greater, if no return has been filed. This amendment is similar to the one introduced by the Ordinance in section 9(1). The amending Act has added sub-section (3-A) to section 9. The new sub-section (3-A) provides that the appellate authority shall not have the power of staying realisation of any amount of tax, fee or penalty payable by the appellant under an order under appeal.