LAWS(P&H)-2000-7-35

S R UDYOG Vs. STATE OF HARYANA

Decided On July 05, 2000
S R UDYOG Appellant
V/S
STATE OF HARYANA Respondents

JUDGEMENT

(1.) Whether the appellate authority can, while entertaining an appeal filed under section 39 (1) of the Haryana General Sales Tax Act, 1973 (for short, "the Act") impose the condition of furnishing of surety bond, is the question which arises for determination by this Court in this petition filed for partial quashing of the order dated March 5, 1998 passed by the Joint Excise and Taxation Commissioner (Appeals), Ambala, and the orders dated July 22, 1998 and July 14, 1999 passed by the Sales Tax Tribunal, Haryana (hereinafter described as "the Tribunal" ).

(2.) The facts necessary for deciding the aforementioned question are that by an order dated December 27, 1995 (annexure P2), the Excise and Taxation Officer-cum-Assessing Authority, Yamuna Nagar, held the petitioner liable to pay Rs. 50,522 as tax for the year 1989-90. The petitioner challenged that order by filing an appeal under section 39 (1) of the Act. Along with the appeal, he filed an application under proviso to section 39 (5) of the Act for entertaining the appeal without pre-deposit of the assessed amount. The Joint Excise and Taxation Commissioner (Appeals), Ambala, accepted its request subject to the condition of furnishing surety bond to the satisfaction of the assessing officer. This did not satisfy the petitioner and, therefore, it filed an appeal before the Tribunal which was dismissed on July 22, 1998. The review petition filed by the petitioner was also dismissed on July 14, 1999.

(3.) Shri K. L. Goyal argued that the condition of furnishing surety bond imposed by the appellate authority should be declared void because the first part of the proviso to section 39 (5) of the Act does not envisage imposition of such condition. He submitted that such condition can be imposed only under second part of the proviso at the stage of consideration of request for stay of the recovery of tax and as the appellate authority was not considering the issue of stay, it could not have imposed the condition of furnishing surety bond. Learned counsel argued that in the absence of any statutory embodiment to this effect, the condition imposed by the appellate authority, which has been upheld by the Tribunal, should be invalidated and the former be directed to hear the appeal without insisting on compliance of the impugned condition. He further argued that the Tribunal has gravely erred in holding that the condition of furnishing surety bond is mandatory. On the other hand learned Deputy Advocate-General argued that the condition of furnishing surety bond cannot be termed as ultra vires to the powers of the appellate authority and in any case the court should not interfere with the impugned orders because no prejudice has been caused to the petitioner by incorporation of the said condition.