J.K. MANUFACTURERS LTD. (FORMERLY J.K. COTTON MANUFACTURERS LTD.) Vs. THE SALES TAX OFFICER, SECTOR II, KANPUR AND ORS.

JUDGEMENT

(1.) I have had the benefit of perusing the Judgment prepared by my brother Beg, J. and I agree with the order proposed by him.

(2.) I agree that the preliminary objection raised by the respondents on the ground that the petitioner should be referred to his statutory remedies under the U.P. Sales Tax Act should be rejected. The writ petitions were filed against the assessment orders and while they were pending the petitioner also filed appeals against these assessment orders. The appeals were dismissed as being defective. The writ petitions were amended to include a prayer for relief against the appellate orders. One of the grounds taken in these cases before us is that Rule 12 -A is ultra vires. That is a ground which cannot be entertained by the authorities constituted under the U.P. Sales Tax Act. In Behari Lal Shyam Sunder v/s. Sales Tax Officer, Cuttack the imposition of sales tax was challenged on the ground that a rule was ultra vires, and the Supreme Court repelled the contention that the question could have been examined and decided by the authorities constituted under the statute. Then there is the circumstance that the questions raised in these writ petitions are Questions which should be decided authoritatively at the earliest as they affect a large number of cases where appeals are filed and are rejected because of apparent non -compliance with the rules. It is in the public interest that such questions should be resolved by adjudication by this Court expeditiously so that the statutory authorities are afforded adequate guidance in respect of matters which arise daily before them.

(3.) The appeals have been dismissed as defective because in all the three memoranda the petitioner failed to disclose the tax admittedly due. In the memoranda originally filed the petitioner stated that the tax admitted to be due was nil and thereafter sought permission to amend the memoranda by inserting the figures of the admitted tax. The appellate authority rejected the prayer for amendment on the ground that it was not competent to permit any amendment. I agree with my brother Beg J. that the appellate authority has made an order which cannot be sustained. The right of appeal against the assessment order is conferred by Sec. 9(1) of the U.P. Sales Tax Act and the proviso to that sub -section declares that no appeal 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 Supreme Court in Lakshmi Ratan Engineering Works Ltd, v/s. Asst. Sales Tax Commr., AIR 1963 SC 488 : : 21 STC 154 has laid down that it is open to an appellant to adduce satisfactory proof of such payment at any time before the appeal is entertained, and the appeal is 'entertained' when it is first taken up for judicial consideration. What the appellant has to establish is that he has paid the amount of admitted tax. [There is nothing in the U.P. Sales Tax Act or Rules which requires that there should be a statement in the memorandum of appeal as to the amount of tax admitted to be due arid paid. Rule 66 which mentions what should be contained in the memorandum of appeal does not contemplate such a statement. It merely requires that as regards the admitted tax liability it shall be accompanied by the challan showing deposit in the treasury of the admitted tax. The Supreme Court has held in Lakshmi Ratan Engineering Works Ltd. , AIR 1968 SC 483 : : 21 STC 154 (supra) that even this requirement is directory only and that it is open to an appellant to prove by producing the challan or by any other mode available to him that the admitted tax has been paid, and he may do this at any stage before the appeal is entertained. The statement in the memorandum of appeal that the admitted tax has been paid, therefore, is not a requirement contemplated by the Act or the Rules, and if it is open to an appellant to prove at any time before the appeal is entertained that the admitted tax has been deposited, it is necessarily implied that he can at any stage before the appeal is entertained show what is the amount of admitted tax and that it has been paid. An erroneous statement made in the memorandum of appeal in that regard cannot be made a ground for rejecting the appeal as defective and cannot preclude the appellant from establishing at any time before the appeal Is entertained that the admitted tax has been deposited. In this view of the matter, the appellate authority was wrong in holding that it was not open to the petitioner to show that the statement made in the memoranda of appeal was (incorrect. In my opinion, the question whether the appellate authority enjoys the power to permit an amendment of the memorandum of appeal does not arise because the statement which the petitioner sought to correct is not a statement required by the Act and the Rules to be mentioned in a memorandum of appeal. Shri K.N. Singh the learned Chief Standing Counsel for the respondents, fairly concedes that the appellate order is erroneous and is liable to be quashed. The matter could have ended there so far as we are concerned. The consequence of the finding that the appellate orders are erroneous and must be quashed is that the appellate authority must now take up the appeals again and dispose them of in accordance with law.