LALTA PRASAD KHINNI LAL vs. ASSTT. COMMR, (JUDL.) SALES TAX, KANPUR & ANR.
What did the Supreme Court hold?
The Supreme Court held that the Assistant Commissioner was wrong in disposing of the appeal on the ground that it had no jurisdiction to extend the period of limitation. The Court clarified that an appeal filed without proof of payment of tax is considered preferred only when such proof is furnished. If this proof is furnished after the expiry of the limitation period, Section 9(6) of the U.P. Sales Tax Act, which makes Section 5 of the Limitation Act applicable, comes into play. This allows the appellant to apply for condonation of delay if there is sufficient cause. The Court reasoned that the correct approach is to treat the appeal as having been preferred on the date proof of payment was furnished and then consider the delay for condonation. The High Court's reliance on the word 'entertain' and the decision in Lakshmiratan Engineering Works Ltd. was found to be misplaced in this context. The appeal was allowed, and the case was remitted to the High Court for appropriate directions to the appellate authority for reconsideration and rehearing of the appeal.
What were the facts?
The appellant, Lalta Prasad Khinni Lal, a Hindu undivided family, was assessed for sales tax for the assessment year 1963-64. The Sales Tax Officer enhanced the turnover, increasing the tax liability. The appellant filed an appeal on October 21, 1965, three days before the limitation period expired. However, the full payment of the admitted tax amount, which was to be made via cheque, was delayed due to encashment difficulties, with the treasury challan produced only on May 27, 1966. The Assistant Commissioner (Judicial) Sales Tax rejected the appeal as defective, holding that the admitted tax was not deposited within the limitation period and the delay could not be condoned under Section 5 of the Limitation Act. The appellant's writ petition challenging this order was dismissed by the High Court.
What were the issues?
1. Whether an appeal filed under Section 9 of the U.P. Sales Tax Act, 1948, can be entertained if the admitted tax due is deposited after the expiry of the period of limitation for filing the appeal, and if so, whether the delay in such deposit can be condoned under Section 5 of the Limitation Act, as made applicable by Section 9(6) of the U.P. Sales Tax Act, 1948. Assessee's arguments: The assessee contended that the appeal was filed within the prescribed time. While there was a delay in depositing the admitted tax, this delay should be condonable under Section 5 of the Limitation Act, which is applicable to appeals under Section 9(6) of the U.P. Sales Tax Act. The Assistant Commissioner erred in rejecting the appeal on the ground of lack of jurisdiction to condone the delay in deposit. Revenue's arguments: The revenue, through the Assistant Commissioner's order and the High Court's dismissal of the writ petition, argued that the proviso to Section 9(1) mandates satisfactory proof of payment of the admitted tax to accompany the appeal. Since this proof was not provided within the limitation period for filing the appeal, the delay in deposit could not be condoned, rendering the appeal defective and non-entertainable.
Which sections of the Income-tax Act were involved?
Section 9(6),Section 5,Section 9(1)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
payable and a certified copy of the order appealed against and the challan showing deposit in the treasury of the tax admitted by the appellant to be due, or of such instalments thereof as might have become pay- able". Rule 67 (3) "If the memorandum of appeal is not in order it may be rejected or be returned, after the necessary endorsement on its back about its presenta- tion and return, to the applicant for correctfon and re- presentation within the time to be fixed by the Assistant Commissioner (Judicial) or be amended then and there". I A B c D E F G H
A B c D E F G • H LALTA PRASAD v. COMMR. S.T. (Grover, J.) 1013 A full bench of the Allahabad High Court considered the ques- tion of the applicability of s.5 of the Limitation Act to a case where the admitted amount of tax is not deposited by the appel- lant within the time prescribed for filing the appeal in Janta Cycle and Motor Mart v. The Assn. Commissioner (!.) III, Sales Tax Kanpur Range & Anr.('). The full bench relied on an observation of this Couvt in Lakshmiratan Engineering Works Ltd. v. Asstt. Commissioner (!.) I, Sales Tax, Kanpur & Aiwther(') with regard to the meaning of the word "entertain''. According to that decision "entertain" meant the first occasion on which the court took up the matter for decision. It might be at the admission stage or if by the rules of the appellate Tribunal the appeals were automatically admitted it would be the time of the hearing of the appeal. The High Court considered that according to the aforesaid decision of this Court when the first proviso is read with the main provision of s.9 (l) of the Act the deposit also had to be made within limitation. The High Court came to the conclusion that s.9(6) of the Act could not be applied and s .5 of the Limitation Act was not attracted when the question arose whether the delay in depositing the admitted tax should be condoned. We are wholly unable to comprehend and appreciate the above reasoning or the conclusion of the High Court on the point under consideration. It is true that an appeal filed under s.9 of the Act cannot be entertained by the appellate authority unless satisfactory proof is adduced of the payment of tax admitted by the appellant to be due but in a case where the amount of ad- mitted tax is deposited after the period of limitation has expired all that will happen is that the appeal will become entertainable only on the day on which satisfactory proof of payment of that amount is produced. In other words the appeal will be deemed to have been properly filed on the date on which the amount of admitted tax is paid. lf that is beyond the period of 30 days
the appeal will be barred by time. Section 9(6) will immediately become applicable to that appeal and it will be open to the appel- lant to apply for condonation of delay under that provision. We are wholly unable to follow the argument that the deposit of the amount of admitted tax must be made within 30 days even though the delay in filing the appeal can be condoned under sub- s.( 6). A proper and correct reading of s.9 cannot justify such an approach. If a petition of appeal has been filed without proof of payment of tax accompanying it that appeal can be said to have been preferred only when proof of payment of tax is furnished. Such furnishing of the proof may take place within the period prescribed for preferring the appeal or after the lapse (1) 22 S.T.C. 94. (2) 21S.T.C.154. 1014 SUPREME COURT REPORTS [ 1972] l S.C.R. of that period. If the proof of payment of admitted tax is fur- A nished within the period prescribed the appeal must be enter-. tained. If the furnishing of that proof is done after the expiry of the period of limitation the question will arise whether the appeal should be entertained or not. In such cases s.9(6) will come into operation and the question will arise whether there has been sufficient cause for not preferring the appeal within the statutory B period. The correct approach is to treat the appeal as having been preferred on the date on which proof of payment of the tax was furnished and then to see whether under sub-s. ( 6) of s.9 there was sufficient cause for excusing the delay iri preferring the appeal. The decision of the Kerala High Court in Ganga- dharan Pillai v. Sales Tax Officer (Reserve) Ernakulam(1) is c to this . effect and we entirely agree with the reasoning and the conclusion therein. In Raja of Vankatagiri v. Commissioner of Tncome tax, Madras( 2 ) a division bench of the A,ndhra Pradesh High Court consisting of Sub ha Rao C. J. as he then was and Bhimasankaram J. had to consider the provisions of the Indian Income tax Act 1922 similar to s.9 of the Act. According to D the proviso to s.30(1) of that Act no appeal lay against an order under sub-s.(1) of s.46 unless the tax had been paid. Sub:s.(2) of that section provided that the appeal was to be ordinarily presented within 30 days but the Appellate Assistant Commis- sioner could admit the same after the expiration of the period if he was satisfied that the appellant had sufficient cause for not presenting it within that period. It was held that the payment of E the tax was condition precedent to the maintainability of the appeal. If an appeal was filed, though after the prescribed period of time10 the Assistant Commissioner had the juri iction to hear ·the appeal after the tax due was paid. The only possible objec- tion that could have been raised was that the appeal was barred as having b~n filed beyond the period prescribed by s.30(2). F But the appellate authority had the juri iction to excuse the delay. The ratio of this decision is that even though the payment of tax was a condition precedent to the maintainability of the appeal the delay could be condoned under s.30(2) thus treat- ing the appeal as having been filed when the amount of tax was paid. G The Allahabad High Court appears to have been greatly in- fluenced by the decision of this Court in Lakshmiratan Engineer- ing Works Ltd. v. Asstt. Commissioner (!.) I Sales Tax, Kanpur ( 3 ) amd by the meaning of the word "entertain" as explain- ed there. We have found considerable difficulty in discovering how that decision could afford any assistance to the respondents in H the present case. Indeed according to that decision the words (1) 16 S.T.C. 578. l (2) 28 I.T.R. 188. (3) 21 S.T.C.154. i
I A B c D E LALTA PRASAD v. COMMR, S.T. (Grover, h) 1015 "no appeal shall be entertained" in the proviso to s.9 do not denote the filing of the memorandum of appeal but refer to the point of time when the appeal is being considered. Therefore, though the memorandum of appeal filed within time is not ac- companied by the treasury challan showing payment of tax if before the appeal is being considered satisfactory proof of pay- ment of tax is given then the proviso to s.9 is satisfied. In the present case when the assessee produced the necessary documents which showed that the deposit of the full amount had been made by May 27, 1966 the appeal became entertainable. It only suffered from the defect that it was barred by time on that date. The assessee could, therefore, apply under s.9(6) for extending the period of limitation in accordance with s.5 of the Limitation Act.. It is entirely a different matter whether on the facts of the present case the appellate authority would have condoned the delay or not but to say that the appellate authority had no juris- diction to extend the time simply because the amount of admitt.ed tax had been deposited beyond the period of 30 days would be wholly erroneous and would not represent a true and correct view of the provisions of s.
It may be pointed out that· the case of Lakshmiratan Engineering Works(1) on which the High Court largely relied did nOi involve the question of the extension of the period of limitation under s. 9 ( 6). Indeed in our judg- ment the word "entertain" in s.9(1) has hardly any material bearing on the point under consideration. As the appellate authority disposed of the-appeal Qn the short ground that it was barred by time and that it had no juri iction to extend the period of limitation this matter will have to go back for reconsideration and redecision of that authority. In the result the appeal is allowed and the judgment of the High F Court is set aside. The case is remitted to the High Court for making appropriate directio.ns for reconsideration and rehearing , of the appeal by the appellate authority under the Act. The assessee will be entitled to costs in this Court. G.C. Appeal allowed. (I) 21 s.r.c. 154. {
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