LAKSHMI RATTAN ENGINEERING WORKS LTD. versus ASSTT. COMMR. SALES TAX, KANPUR & ANR.

LAKSHMI RAlTAN ENGINEERING WORKS LTD.

ASnT. COMMR. SALES TAX, KANPUR&: ANR.

September 12, 1967

IM. HIDAYATULLAH, V. BH.UG.WA A'ID c. A. VAIDI.ALINGAM, JJ.]

UP. Salea-Taz Act (U.P. 15 of 1948) S. 9-Memorandum of appeal-Cltallan showing deposit of tax, if necessary-U.P. Sales-taz Rule•, 1948. r. 66(2)--Constitution of India. Art. 136--:Special leai:e to appeal-Other remedies not e:rhausted-If can be g!llen.

The. appellant-assessee filed memorandum. of appeal to the Assistant Commissioner, Sales Tax. stating therem that the amount of admitted tax had been paid and forfeited the statement by an ·C affidavit. Before the hearing, he produced certificate from the Sales-T.ax Officer that the tax had been paid. The Assistant Com-missioner relying on the Allahabad High Court's decision in Swa•-tilca · Tllnnef'll, Jaimau v. Commissioner of Sales-tax, U .P. rejected as defective the memorandum of appeal. holding that it was not accompanied by the challan showing the . •posit of admitted tax under s. 9 of the .Uttar Pradesh Sales Tax Act, 1948 and r. 66 of the U.P. Sales-tax Rules. Against this order the assessee directly filed special leave to appeal to this Court without exhausting the remedies of revision and reference provided in the Act. This Court granted Special Leave and;

Hnn: The appeal must be allowed.

(i) By the \\~ord ··entertain" in the proviso to s. 9 is meant the first occasion on which the Court take up the matter for considera-tion. It may be at the admission stage or if by the rules of that Tribunal, the appeals are automatically admitted, it will be the time of hearing of the appeal. But on the first occasion when the court takes up the matter for consideration. satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. Rule 66(2) lays down one uncontestable P mode of proof which the Court will always accept but it does not exclude the operation of the proviso when equally satisfactory proof 1s made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly .made and in time. [512E-F; 513E-G]

In the present case. when the Assistant Commissioner took up the appeal for consideration. satisfactory proof was available in' the shape of certificate.

Swastika Tanneru. of Jaimau v. Commissioner of Sales.tax. U.P. Lucknow, 0963) 14 S.T.C. 518. disapproved.

Kundan Lal v. Jagannath Sharma. A.I.R. 1962 All. 547; Dhoom Chand Jain v. Chaman Lal Gupta and Anr. A.l.R. 1962 All. 42: /iaii Rahim Bux & Sons & Ors. v. Firm Samiullah & Sons, A.LR. 1963 All. 320, approved.

Iii) Thoul!h this Court would not ordinarily grant special leave to appeal against an order when other remedies were available and had not been exhausted. there is no inflexible rule that this Court wi.11 never entertain such an appeal. It would have been futile in th1~ case for the assessee to have gone to the court of revision which w~ _bound by the decision in Swastika Tannery of Jaimau v. Comm1SS1oner of Sales-tax, U .P. and it would have been equally

futile· to have gone to the High Court on reference. The matter A. was more easily disposed of by giving special leave in this Court and. this was one of those extra-ordinary cases in which the ends of justice would be better served, by avoiding circuity· of action &nd by dealing with this matter in this Court directly. [513H-li14C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1283 of 1967.

Appeal by special leave from the Order dated April 2 / 3. [8 ]1967, of the Court of Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur in Appeal No. D.F. 78 of 1966. I. P. Goyal and Sobhag Mal lain, for the appellant.

0. P. Rana, for the respondents.

The Judgment of the Court was delivered by

Hlciayatullall, J. This is an appeal by special leave against an order 2/3 April, 1967, of the Assistant Commissioner (Judicial) I. Sales Tax, Kanpur Range, Kanpur by which the Assistant Commissioner rejected as defective the memorandum of appeal filed by the present appellant against the assessment order passed by the Sales Tax Officer (S-1) Kanpur. The defect. according to the Assistant Commissioner, was that the memorandum of appeal (which had been filed well within time) was not accompanied by the challan showing the deposit of admitted tax under s. 9 of the Uttar Pradesh Sales Tax Act, 1948. The appellant did not file an application for revision and did not also invite reference to z· the High Court of Allahabad but came direct to this Court by special leave which was granted by us on August 23, 1967. At . the first hearing of the petition, the Stat~ of Uttar Pradesh repre' sented by Mr. O.P. Rana.. objected to the grant of special leave inasmuch as the other provisions under which remedy could be obtained under the Sales-tax Act had been bypassed. At that time, we overruled the objection and in the course of this judg· ment, we shall briefly indicate the reasons which had then pre· vailed with us.

The facts of the case are as follows: The appellant had declared his turnover for the year 1964-65 at Rs. 3,70,941.7 P. on which the admitted tax under the Act came to Rs. I l.135,58p. The Sales-tax authorities, however, assessed his turnover at Rs. 30 lakhs on which tax was calculated at Rs. 90.000. The appellant appealed to the Assistant Commissioner (Judicial> J, Sales-tax, Kanpur Range, Kanpur. His appeal was filed on May 16. 1966. the order of assessment and the demand notice having been served on him on April 16, 1966. The appeal was therefore filed within time. Section 9 of the . Act provides that no appeal against an R assessment shall be ehtertained unless it. is accompanied by satis-factory proof of the payment of the amount of tax admitted by the appellant to be due or of such instalments thereof as may have b~come payable. As is s.tated earlier, the admitted tax came to Rs. ll,135.58 P. The appellant was required under this provisionc of law to give satisfactory proof, at the time of the entertainment of the appeal, that this tax was duly paid. It appears that the appellant had paid greater portion of the tax even before the assessment order had been made, and balance of Rs. 99.99 P'. was due from him from the amount of admitted tax. This amount was deposited on April 26, 1966 before the appeal was filed by him. He did not however present any proof of such deposit, be· cause there is dispute in the case whether the as>essee had shown proof of it to the munsarim or not. As the finding is that he had not shown it we shall proceed on the assumption that the assessee had not furnished proof at the time of the filing of the appeal that the balance of tax had been paid. It is on this pre-mise that the present appeal has proceeded before·us. On August 16, 1966, the assessee addressed letter to the Sales-tax Officer and asked for certificate of payment of tax and this certificate having been furnished he filed it on January 24, 1967 before the· Assistant Commissioner. He also, as matter of abundant cau-tion, filed an application for condonation of delay under s. 9(6) of the Act read with s. 5 of the Indian Limitation Act. The order against which the present appeal has been brought before us was made on 2/3 April, 1967 and the appeal of the assessee was re' jected, because in the opinion of the Assistant Commissioner s. 9 of the Act read with r. 66(2) had not been complied with since no . proof had been given along with the memorandum of appeal that B. · the tax had been paid. Simultaneously, the application for condo· nation of delay was also dismissed. Against this order, the asses-see has filed the present appeal..

The short question in this case is whether having made the· deposit even before the appeal was filed and well within the 'Period of limitation, the assessee could be deprived of his right of appeal under s. 9 of the Act Alternatively, it is to be considered whether the proof of the payment of the admitted -tax had to accompany . the memorandum of appeal as required by r. 66(2) and on failure to furnish such proof. the appeal itself became incompetent. In ·support of his order the Assistant Commissioner relied on deci· sion of the Allahabad High Court reported in Swa:.tika Tannery of Jaimau v. Commissioner of Sales.fax. U.P. Lucknow(') in which the learned Chief Justice of that Court and another learned Judge have laid down that the proof of payment must be as required by the rules and, therefore. the memorandum of appeal ought to be accompanied by the Challan showing payment of tax before the appeal can be said to be competent. We shall refer to that ruling presently.

In this appeal, learned counsel for the assessee has relied upon number of authorities in which the interpretation runs

counter to the decision of the learned Chief JU6tice just advel1ecl to and had coniended that s. 9 of the Act does not create the bar which the ruling and the· Assistant Commissioner's reliance on that ruling has created in the way of the appeal. His contention is that if satisfactory proof is given before the appeal is heard or ·at any rate before it is admitted; the requirement of law under s. 9 is satisfied and thljt it is not always incumbent to produce challan with the memorandum of appeal, r. 66(2) notwithstanding.· It is this point which has given rise to the great controversy before us and the matter was argued at great length both at the time of grant of special leave and today. ·

To consider the matter, we may begin by quoting s. 9 of the Act. Section 9 which. gives the power of appeal provides as :follows:

"(}) Any dealer objecting to an order allowing t>r refusing an application for exemption certificate under cl. (b) of sub-section (I) of s. 4 or to an order reftsing an application under s. 30 or to an order imposing penalty under s. IS-A or to an assessment made under s. 7, 7-A. 7-B, 18 or 21, may within 30 days from the date of service of the copy of the order or notice of assessment, as the case may be, appeal to such authority as may be prescribed;

Provided that no appeal against an assessment shall be entertained uri'less it is aceompanied 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:

.. -. p

Under s. 24 of the Act power has been conferred upon the State Government to make rules to carry out the purposes of the Act and in particular, to provide for all matters expressly required or allowed by this Act to be prescribed. Under sub-s. (4) of that section, it is provided that all rules made under the section shall be published in the Gazette and upon such publication, shall have effect immediately as if enacted in the Act and under the 5th sub- section, it is further provided that all rules made under the Act shall be laid for fourteen days before the Legislature as $<>OD as possible after they are made and shall be subject to such modifi-cations as the Legislature may make during the session in whicb ·they are so laid. In exercise of this power, the State Govern-ment has framed the U.P. Sales-tax Rules, 1948. Rules 66 and R 67 of these ru~s bear, among others, upon appeals. Sub-r. 1 of r. 66 provides for the content of. the appeal by stating what the memorandum of appeal shall specify in- relation to the name and Jiddress of the appellant etc; We are not concerned with it Sub-r.

2 then states that "the memorandum of appeal sfrall be accom-· panied by . . . . . . . . . challan showing deposit in tlie Treasury of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable." Rule 67 lays down how the appeals have to be· presented. Sub-r. I provides that the memorandum of appeal shall be presented by the appellant or his lawyer or duly authorised agent to the Assistant Commissioner <Judicial) or may be sent by registered post addressed to the Assis-tant Commissioner, (Judicial). Sub-r. 2 provides that if the · memorandum of appeal is in order. the Assistant Commissioner, (Judicial) shall admit it and on admission. the Reader of the Assis-tant Commissioner (Judicial) shall endorse thereon the date of its presentation and shall register it in book to be known as Regis-C ter of Appeals. The third sub-rule says that if the memorandum of appeal is not in .order., it may be rejected or returned after the necessary endorsement on its back about the presentation and re-turn to the applicant for correction and representation within the time to be fixed by lhe Assistant Commissioner (Judicial) or be amended then and there. Lastly sub-r. 4 provides that on ad-D mission of an appeal, the Assistant Commissioner (Judicial) shall fix date for hearing of the appea~ and may send for the record. if necessary.The contention of counsel for the assessee is that he had fully complied with the requirements of s. 9 ·although not strictly as laid dawn in .r. 66 which he characterised as directory. The conten-B tion on the other side is that the rule lays down the only manner of compliance with the provisions of the Section and in support Counsel for the State refers to the provisions of s. 24(4) and (5) in which it is stated that the rules on being framed become pan of the· Statute. From this, counsel for the State infers thal there is no other mode· of compliance except the one stated in the i"11es 11 · and as in this case that mode of compliance was not followed, the appeal is rightly considered to be incompetent and properly reject· ed. This in main represents the essence of the controversy bet-ween the parties. ·

'.f o begin with it mu.c be noticed that the. proviso merely requires that the appeal ~hall not be entertained unless it is accom-G panied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. question thus arises what is the meaning of the word 'entertained" in this context?" Does it mean that no appeal shall be received or· filed or d0es it mean that no api;ieal shall be admitted or heard and disposed of unless satisfa~tory p~oof is available? The dictionary meaning of the wor~ entertam' was. brought I? our notice by the parties, and both sides agreed that 1t means either "to deal with or admit t? consideratio~"· We are also of the same opinion. The ques. tl~n. therefore, 1s at what stage can the appeal be said to be enter-. tamed for the purpose ·of the applieation of the proviso?' Is it

'.entertained' when it is filed or is it 'entertained' whe·n it is ad· milted and the date is fixed for hearing or is it finally 'entertained' -when it is heard and disposed of? ·Numerous cases exist in the ]aw reports in which the word 'entertained' or similar cognate· ex-pressions have been interpreted by the courts. Some of them :from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For. the pre- ~sent we must say that if the legislature intended that the word ·'file' or 'receive' was to be used, there was no difficulty in using 'those words. In some of the statutes which were brought to our .notice such expressions have in fact been used. For example, under Order 41. rule I of the Code of Civil Procedure it is stated that memorandum shall not be filed o~ presented unless it is accompanied etc.; in s. l 7 of the Small Causes Courts Act, the ex- O pression is 'at the time of presenting tlie application'. In sec. 6 ·of the Court Fees Act, the words ru;i: 'file' or 'shall be received'. lt would appear from this that the legislature was not at loss for ·words if it had wanted to express itself in such forceful manner as 'is now suggested by counsel for the State. It has used the word ·•entertain' and it must be accepted that it has used it advisedly. This word has come in for examination in some of the cases of the Allahabad High Court and we shall now refer to them.

In Kundan Lal v. lagannath Sharma(') the Court was con-cerned with Order 21, rule 90, of the Code of Civil Procedure ·which had been amended by the High Court by changing the pro-wisions of the original Code. The changed rule is as follows: "Provided that no application to set aside the sale shall be entertained :

(a) upon any ground which should have been taken by the applicant on or before the date on which the sale proclamation was drawn up: P <(b) Unless the applicant deposits such amount not ex-ceeding 12!% of the sum realised· by the sale or furnishes such security as the court may in its dis-cretion fix, except when for reasons to be record-ed it dispenses with the requirements of this c1ause ...... ".

The word 'entertain' is explained by Divisional Bench of 'the Allahabad High Court as denoting the point of time at which •an application to set aside the sale is heard by the court. The expression 'entertain'. it is stated, does not mean the same thing as the .filing of the application or admission of the application by 'the court. similar view was again taken in• Dhoom Chand Jain v. Chamanla/ Gupta & Anr.(') in which the learned Chief

(') A.I.R. 1962 AIL 547. (') A.LR 1962 All. 543.

Justice Desai and Mr. Justice Dwivedi gave the same meaning to the expression 'entertain'. It is observed by Dwivedi J. that the word 'entertain' in its application bears the meaning 'admitting to consideration', and therefore when the court cannot refuse to take an application which is backed by deposit or security, it cannot refuse judicially to consider it. In single bench decision of the same court reported in Bawan Ram & Anr. v. Kunj Behari/a/(') one of us (Bhargava, J.) had to consider the same rule. There the deposit had not been made within the period of limitation and the question had arisen whether the court could entertain the applica-tion or not. It was decided that the application could not be entertained because proviso (b) debarred the court from entertain-ing an objection unless the requirement of depositing the amount or furnishing security was complied with within the time pres-cribed. In that case the word 'entertain' is not interpreted but it is held that the court cannot proceed to consider the application in the absence of deposit made within the time allowed by law. This case turned on the fact that the deposit was made out of time. In yet another case of the Allahabad High Court reported in Haji Rahim Bux & Sons and Ors. v. Firm Samiu/lah & Sons(') division bench consisting of Cheif Justice Desai and Mr. Justice S. D. Singh interpreted the words of 0. 21, r. 90, by saying that the word 'entertain' meant not 'receive' or 'accept' but 'proceed to consider on merits' or 'adjudicate upon'.

In our opinion these cases have taken correct view of the word 'entertain' which according to dictionary also means. 'admii to consi,deration'. It would therefore appear that the direction to the court in the proviso to s. 9 is that the court shall not pro-ceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court fo~ the first time. In the decision on which the Assislllnt Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words 'accom-panied by' showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something !3ngible, because no intangible thing can accompany document hke the memorandum of appeal. In our opinion. making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under 0. 41 of the Code of Civil Procedure. the expressions "~pi:ieal" a~d "memorandum of appeal" are used to denote two dtstmct thmgs. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examination of the deci-sion by higher Court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited.

(') A.l.R. 1961 All. 42. (') A.l.R. 1963 All. 326.

For . purposes of limitation and for purposes of the rules of the Court it is. required that written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the ap-p~al. it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.

Now the complicating factor is the existence of the rule, and here. the divergence of submission arises on whether the rules can be regarded as mandatory or merely directory. It is quilt Pbvious that the section as it stands only requires that at the time of the consideration of the appeal. There should be satisfactory proof that the admitted tax has been deposited. It only says that no appeal shall be entertained· unless accompanied by sati!factory proof of the payment of the tax. This satisfactory proof ma; take any form; in fact in thtl present case satisfactory proof was tendered in the shape of certificate from the Sales-tax Officer that the admitted tax- had been deposited and well within time. Under section 9 and its proviso as they stand, it is quite obvious that 'entertainment' means the point of tinte when the appeal i:; being considered. There was thus satisfactory proof in the pre-sent case. No doubt. proof was not tendered following the method required by the rules but the question is whether the rules can make the section narrower by prescribing particular mode. The section is general; it provides that the court should accept satisfac-tory proof. The rule requires that the memorandum of appeal shall be accompanied by the challan showing payment of tax. The rule lays down one uncontcstable mode of proof which the Court will always accept but it does not exclude the operation of the pro-viso when equally satisfactory proof is made available to the oflicer hearing the appeal and it is proved to his satisfaction that the pay-ment of the tax has been duly made and in time. In this sense, the rule can be regarded as· directory since it lays down one of those modes which will be unquestioned for its validitv. The ether modes of proof are not necessarily shut out. ·

It is to be remembered that all rules of procedure are intend-ed to advance justice and not to defeat it. Here the right of appeal has been made subservient to the payment of the admitted tax. If the admitted tax is paid and there is proof available that it has been so paid, there exists no reason to create second im-pe<liment in the way of the appeal. No doubt, rule makes it easy for the assessee to bring satisfactory proof in an unccintestable manner. but the provision of the rule is not to the exclusion of other satisfactory modes of proof. Suppose for instance that the K challan was lost and the time for the filing of the appeal was ex-piring, could or could not the person concerned say that he had the certificate but had lost it and that he would produce copy of the challan from the Treasury or obtain certificate from the

Treasury Officer, CQuld he not obtain from the bank the dis-charged cheque by which the amount of tax was deposited by him and produce it as tile discharged counterfoil of payment. All ·these modes of proof will be equally irrefutable. In the present case the assessee had in his petition of appeid stated that the amount of tax had been paid and had· fortified the statement by an affidavit. Before the hearing he produced certificate from the Sales-tax Officer that the tax had been paid. . The Assistant Commissioner ought therefore to have proceeded with the appeal because it was accompanied by satisfactory proof of the payment of the tax. To hold otherwise would put premium upon technicality which we do not see will advance the case either for the collection of the tax or for the administration of justice. The rule, as we have stated,. indicates what is the best and easiest method of achieving satisfactory proof. The certificate from the Sales-tax Officer, however, is as good proof as the challan from the Treasury arid if such certificate was produced at the admission of the appeal, how the memorandum of appeal can be said to be de-fective under the ,section as it stands. In these circumstances, we hold that the rule is merely directory· and indicates only one of the modes of satisfactory proof.

The distiliction made by the learned Chief Justice between the tangible and intangible objects does not in our opinion fall for consideration in the present case. If one holds that by 'entertain-ment' is meant the time of admission of the appeal, satisfactory proof may be furnished at the time of admission of the appeal. We are of opinion that by the word "entertain" here is meant the. first occasion on which the court takes up the matter for considera-tion. It. may, be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing ·of the appeal. But on the first occasion when the court takes up the matter for con~ideration, satisfactory proof must be presented that the tax was paid within the period by limi-tation available for the appeal. In the present case when the Assistant Commissioner took up the appeal for consideration, · satisfactory proof was available in the shape of certificate which even today is not denied. In our opinion the Assistant Commis-sioner was wrong in declining to consider the appeal in the pre-G sence of such uncontestable proof.

It remains to point out why we did not insist upon the asses-see exhausting his other remedies under the Act before coming to this Court. It waii made to appear ro us that there is right of revision and right of reference to the High Court in all such cases and that this remedy was not resorted to by the assessee before making petition for special leave in this Court. We were taken through number of cases in which it has been laid down by this Court that this Court will not ordinarily grant special leave to appeal against an order when other remedies are available and L/JN)8 SCI No-7have not been exhausted. But there is no inflexible rule that this Court will never entertain an appeal and .numeroiis instances have occurred in this Court where such appeals have been admitted. It would have been futile in this case for the assessee ·to have gone to the court of revision which was bound by the ruling of the Allahabad High Court reported in Swastika Tannery of 'Jaimau v. Commissioner of Sales-tax U.P. Lucknow(') and it would have been equally futile to have gone to the High Court on reference. The matter was more easily disposed of by giving special leave in this Court and we therefore felt that this was one of those extra-ordinary cases in which the ends of justice would be better served, by avoiding circuity of action and by dealing with this matter in this Court directly. It is for this reason that we granted special leave to appeal. The appeal shall therefore be allowed and the appeal shall be remitted to the Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur, for disposal in accordance with law. There shall be no order as to costs.

Appeal allowed and remitted.