TMI Blog1979 (12) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals against the assessment order before the Assistant Commissioner (Judicial), while the aforesaid amounts of interest were deposited sometime after the filing of those appeals, but before the appeals were entertained for consideration. The Assistant Commissioner (Judicial), being of the view that the amounts of interest had not been deposited within the statutory period provided for the filing of an appeal, held that the appeals were barred by time and could not be entertained; hence he dismissed them in limine. Being aggrieved, the assessee took the matter in revision before the Additional Judge (Revisions), Sales Tax, Gorakhpur. The learned revising authority, relying upon a decision of this Court in the case of Commissioner of Sales Tax v. Rama Biscuit Factory1978 U.P.T.C. 438., held that the amount of tax having been deposited after the expiry of the period of limitation provided for filing the appeals, the appeals had to be treated as barred by time and the question of delay could be considered only if an application for condonation of delay had been given under section 9(6) of the Act and, since no such application had been given, the appeals were barred by time. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of payment of the fee payable and a certified copy of the order appealed against, and the chalan showing deposit in the treasury of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable." Rule 67(3) reads: "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 presentation and return to the appellant for correction and representation within the time to be fixed by the Deputy Commissioner (Appeals) or the Assistant Commissioner (Judicial), as the case may be, or be amended then and there." The meaning of the word "entertained" in the proviso to section 9 was explained by the Supreme Court in Lakshmiratan Engineering Works v. Assistant Commissioner, Sales Tax[1968] 21 S.T.C. 154 (S.C.); A.I.R. 1968 S.C. 488. The view taken was that it would be correct to adopt the dictionary meaning of the word "entertained" and that meaning is "admitted to consideration". It would, therefore, appear that the direction to the court under the proviso to section 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfacto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under consideration, required that the tax assessed under this Act shall be paid within 30 days from the date of service of the notice of assessment and demand and, in such manner, as may be specified in the notice. In default of such payment, the whole of the amount then remaining due shall become recoverable in accordance with sub-section (8). Sub-section (8) provides for the recovery of any tax or other dues payable to the State Government as arrears of land revenue. As for the charge of interest, provision was made in sub-section (1-A) of the Act. Sub-sections (1) and (1-A) were subsequently replaced by subsections (1), (1-A), (1-B) and (1-C) by section 14 of the U.P. Sales Tax (Amendment and Validation) Act, 1975 (U.P. Act No. 38 of 1975). Sub-sections (1) and (1-C) read as under: "(1) The tax admittedly payable shall be deposited within the time prescribed or by the thirty-first day of August, 1975, whichever is later, failing which simple interest at the rate of two per cent for every month or part thereof shall become due and be payable on the unpaid amount with effect from the day immediately following the last date prescribed or with effect from the first day of June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit; the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and, lastly, that this vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. In view of this pronouncement, therefore, the amended provisions contained in section 8(1) and 8(1-C) will not apply to the assessment year under consideration and since there was no provision earlier similar to the one contained in section 8(1-C), interest could not be treated as a part of the admitted tax and the deposit of interest could not have been required as a condition precedent for the entertainment of an appeal. Coming to the second aspect, I find that a learned single Judge of this Court in Commissioner of Sales Tax, U.P. v. Vijay and Company[1980] 45 S.T.C. 161; 1979 U.P.T.C. 1204. took the view that all that section 9(1)(a) requires "is that the assessee should deposit the amount of tax/or fee admitted by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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