TMI Blog1971 (10) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appeal by the appellate authority under the Act. The assessee will be entitled to costs in this court. - Civil Appeal No. 2571 of 1969, - - - Dated:- 6-10-1971 - HEGDE K.S. AND GROVER A.N. JJ. S. Markaandeya, Advocate, for the appellant. Dr. L.M. Singhvi, Senior Advocate (O.P. Rana, Advocate, with him), for the respondents. -------------------------------------------------- The judgment of the court was delivered by GROVER, J.- This is an appeal by certificate from a judgment of the Allahabad High Court in which the main point involved relates to the provisions of section 9 of the U.P. Sales Tax Act, 1948, hereinafter called the "Act". The facts lie in a narrow compass. Lalta Prasad Khinni Lal, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner (Judicial), Sales Tax. That petition was dismissed on the ground that although the appeal was filed within time there was delay in making the necessary deposit of the admitted tax and that delay could not be condoned under section 5 of the Limitation Act. Section 9 of the Act deals with an appeal against an order of assessment. It provides that any dealer objecting to an order under the various sections mentioned in sub-section (1) may within 30 days appeal to such authority as may be prescribed. The proviso to sub-section (1) is material and is set out below: " Provided 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (J.) I, Sales Tax, Kanpur [1968] 21 S.T.C. 154 (S.C.)., 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 section 9(1) of the Act the deposit also had to be made within limitation. The High Court came to the conclusion that section 9(6) of the Act could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of that period. If the proof of payment of admitted tax is furnished within the period prescribed the appeal must be entertained. 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 section 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 period. The correct approach is to treat the appeal as having been preferred on the date on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred as having been filed beyond the period prescribed by section 30(2). But the appellate authority had the jurisdiction 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 section 30(2) thus treating the appeal as having been filed when the amount of tax was paid The Allahabad High Court appears to have been greatly influenced by the decision of this court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (J.) I, Sales Tax, Kanpur [1968] 21 S.T.C. 154 (S.C.)., and by the meaning of the word "entertain" as explained there. We have found considerable difficulty in discovering how that decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of the extension of the period of limitation under section 9(6). Indeed in our judgment the word "entertain" in section 9(1) has hardly any material bearing on the point under consideration. As the appellate authority disposed of the appeal on the short ground that it was barred by time and that it had no jurisdiction to extend the period of limitation this matter will have to go back for reconsideration and re-decision of that authority. In the result the appeal is allowed and the judgment of the High Court is set aside. The case is remitted to the High Court for making appropriate directions for reconsideration and rehearing of the appeal by the appellate authority under the Act. The assessee will be entitled to costs in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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