R.L. Gulati, J.
1. This is a reference under Section 11(1) of the U.P. Sales Tax Act submitted by the Judge (Revisions) Sales Tax, Lucknow, for the opinion of this Court on the following question of law:
Whether under the circumstances of this case exemption fee ought to have been deposited as contemplated by the proviso to Section 9 of the U.P. Sales Tax Act
2. The assessee who carries on business in foodgrain at Kanpur, applied for exemption under Rule 20-B of the U.P. Sales Tax Rules in respect of its turnover of foodgrain for the assessment year 1956-57. The turnover of foodgrain on which, according to the assessee, the exemption fee was payable was a sum of Rs. 25,000. The Sales Tax Officer, however, did not accept the figure of turnover and assessed the same at Rs. 75,000 and demanded a sum of Rs. 750 as exemption fee. The assessee appealed. A preliminary point was raised that as the assessee had failed to deposit even the admitted exemption fee of Rs. 150, the appeal was not maintainable in view of the first proviso to Section 9 of the Act which reads as follows :
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 the appellant to be due, or of such instalments thereof as may have become payable.
3. This objection was overruled by the Judge (Appeals). When the matter came in revision, the same objection was repeated on behalf of the department, but the Judge (Revisions) also did not accept this objection. The Commissioner of Sales Tax has now come up in reference.
4. The proviso in question comes into play only when an assessee files an appeal against an order of assessment. Under Section 9 of the Act an appeal is provided against assessments made under Sections 7, 7-A, 7-B, 18 and 21. An exemption order is contemplated by Section 4(1) of the Act. Therefore, an order passed under that Section is not an assessment order contemplated by Section 9 and any amount payable under an order of exemption under Section 4(1) cannot be held to be a tax for the purpose of Section 9.
5. Mr. R.M. Sahai, learned counsel for the Commissioner, urged that the exemption fee is nothing but a capitalised tax and in support of this contention he relied upon a decision of this Court in Firm Ram Prasad Banwari Lal v. Sales Tax Officer, Moradabad A.I.R. 1958 All. 878. It is not necessary, however, to go into that question as we are of opinion that assuming that exemption fee is a capitalised tax, the same cannot be regarded as tax levied under an assessment order contemplated by Section 9. We are, therefore, of opinion that it was not necessary for the assessee to have deposited the exemption fee before his appeal could be entertained against the order of exemption.
6. We, therefore, answer the question in the negative in favour of the assessee and against the Commissioner. The assessee is entitled to his costs which we assess at Rs. 100.