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TMI Blog1971 (10) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... sions 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 Hindu undivided family which is the assessee, carried on business of manufacturing oils. For the assessment year 1963-64 it was assessed to sales tax under the Act by an order dated July 28, 1965. The assessee had been filing its quarterly returns and had deposited a sum of Rs. 3,153.01 which was the admitted amount of its tax liability. The Sales Tax Officer, however, made an assessment enhancing the turnover which resulted in increase of the amount of tax. The assessee filed an appeal on October 21, 1965, which was three days before the period of limitation prescribed for filing the appeal was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against an assessment 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 instalments thereof as may have become payable: Provided, secondly, that the appellate authority shall not exercise any powers or perform any other function except those conferred on or entrusted to him as such authority." Sub-section (6) of section 9 provides that section 5 of the Indian Limitation Act, 1908, shall apply to appeals under the Act. The relevant Rules may next be reproduced: Rule 66(2): "The memorandum of appeal shall be accompanied by adequate proof of payment of the fee payable and a certified copy of the order appealed against, and the chalan sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be applied and section 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 Allahabad High Court on the point under consideration. It is true that an appeal filed under section 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 admitted tax is deposited after the period of limitation has expired all tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeal within the statutory 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-section (6) of section 9 .there was sufficient cause for excusing the delay in preferring the appeal. The decision of the Kerala High Court in Gangadharan Pillai v. Sales Tax Officer (Reserve), Ernakulam [1965] 16 S.T.C. 578, is to this effect and we entirely agree with the reasoning and the conclusion therein. In Raja of Venkatagiri v. Commissioner of Income-tax [1955] 28 I.T.R. 189., a Division Bench of the Andhra Pradesh High Court consisting of Subba Rao, C.J., (as he then was) and Bhimasankaram, J., had to consider the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and by the meaning of the word "entertain" as explained there. We have found considerable difficulty in discovering how that decision could afford any assistance to the respondents in the present case. Indeed, according to that decision the words "no appeal shall be entertained" in the proviso to section 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 accompanied by the treasury chalan showing payment of tax if before the appeal is being considered satisfactory proof of payment of tax is given then the proviso to section 9 is satisfied. In the present case when the assessee produced the necessary do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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