TMI Blog2000 (8) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... ition filed under article 226 of the Constitution of India. 2.. The facts relevant to the decision of this petition are that by an order dated June 10, 1994, the Assessing Authority held the petitioners liable to pay tax amounting to Rs. 153.87 under the State Act in relation to the assessment year 1991-92. By another order dated September 27, 1994, the Assessing Authority held the petitioners liable to pay tax amounting to Rs. 476.07 under the State Act and penalty amounting to Rs. 100 under section 9(2) of the Central Sales Tax Act, 1956 read with section 48 of the State Act in relation to the assessment year 1990-91. The latter order was revised by the Deputy Excise and Taxation Commissioner (I)-cum-Revisional Authority, Gurgaon (respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as a condition precedent to the hearing of appeal held as under: "In our opinion, the appellate authority can exercise power under first part of the proviso to section 39(5) only if it is satisfied that the appellant is unable to pay the whole amount of tax, etc., and this satisfaction must be reflected in the form of reasons to be recorded in writing. The argument of Shri Goyal that the condition of furnishing adequate surety cannot be imposed, in an order passed under the first part of the proviso is based on a misconceived assumption that the language of that part of the proviso is restrictive in nature. However, on a consideration of the plain language of proviso to section 39(5), we are convinced that even though it does not expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g surety bond, the appellate authority should have given an opportunity to the petitioner to satisfy that it is not in a position to do that. He submitted that if the petitioner had been pre-informed about the proposed imposition of condition embodied in the order passed by the appellate authority, its representative could have produced evidence to establish its inability even to furnish the surety bond. We find some substance in the argument of the learned counsel that before imposing the condition of furnishing surety bond, the appellate authority should have given an opportunity to the petitioner to adduce evidence about its inability to comply with this condition and its failure to do so has resulted in violation of the principles of na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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