M.C. Desai, C.J.
1. The Judge (Revisions), Sales Tax, U.P., has at the instance of an assessee referred to this Court for its opinion the following two questions:
(1) Whether in the circumstances of the case, the defect about the failure of the applicants to deposit the admitted amount of tax as required by the second (sic) proviso to Section 9 was cured by the provisions of Rule 67(2) ?
(2) (If the answer to the first question is in the affirmative) whether the service of the notice of the hearing of the assessment case was validly made on the applicants ?
2. The circumstances as stated in the statement of the case are as follows. An assessment order was passed ex parte under Sectiontion 7(3) of the Sales Tax Act and it was served upon the assessee on 24th September, 1953. Admittedly the assessee had a right of appeal against it and admittedly the last day on which he could file an appeal was 24th October, 1953. It actually filed an appeal on 12th October, 1953, with a challan for payment of Rs. 442-10-9. It had admitted its liability for payment of the tax of Rs. 510-1-3 and thus it did not pay Rs. 67-6-6 out of the admitted tax. The office report on the memorandum of appeal dated nth November, 1953, pointed out that the admitted tax of Rs. 67 and odd had not been paid by the assessee. Subsequently on 27th November, 1953, the assessee presented two challans, one dated 6th October, 1953, for Rs. 9-8-3 and the other dated 26th November, 1953, for Rs. 57-14-3. Admittedly the period of limitation of appeal had expired before 27th November, 1953. The Judge (Appeals) on 8th May, 1954, held that the appeal did not conform to the requirements of the first proviso to Section 9 and rejected it.
3. Sub-section (1) of Section 9 provides that any dealer objecting to an assessment order 'may within 30 days from the date of service of the copy of the order..., appeal to such authority as may be prescribed : Provided that no appeal against an assessment shall be entertained unless it is accompanied by a satisfactory proof of the payment of the amount of tax admitted by the appellant to be due.' Sub-section (2) provides that 'the appeal shall be in the prescribed form and shall be verified in the prescribed manner.' The Appellate Court is empowered by Sub-section (3) to confirm, reduce, enhance or annul the assessment or set aside the assessment and direct the assessing authority to pass fresh order. Under Sectiontion 20 the State Government have power to make rules to carry out the purposes of the Act, and provide for matters which are to be prescribed. In exercise of this power they have made Rules 65 to 68 regarding appeals. An appeal under Sectiontion 9 lies to the Judge (Appeals); Rule 65(2) provides that 'every appeal shall be preferred in the form of a memorandum, written on watermark or any other stout paper', and Sub-rule (3) requires that 'the memorandum of appeal shall be accompanied with a certified copy of the order appealed from and a spare copy of the memorandum.' Sub-rule (1) of Rule 66 provides for the contents of the memorandum of appeal and Sub-rule (2) provides that it 'shall be accompanied by a certified copy of the order appealed from and the challan showing deposit in the treasury of the tax admitted by the appellant to be due.' Rule 67 requires that 'the memorandum of appeal shall be presented by the appellant or his lawyer...or may be sent by registered post.' If it is in order, the Judge (Appeals) is required to admit it and if it is not in order he may reject it or return it for correction and re-presentation within the time to be fixed by him. When he admits an appeal he is to fix the date for hearing of the appeal. These are the relevant provisions of law and the question before us is whether the Judge (Appeals) rightly rejected the memorandum of appeal on the ground that it was not accompanied by satisfactory proof of the payment of the admitted amount of the tax.
4. Sub-section (1) of Section 9 refers to an act of appealing whereas the proviso refers not to an act of appealing but to a memorandum of appeal. An act of appealing is done by the presentation of a memorandum of appeal and it is the memorandum of appeal that is meant by the word 'appeal' in the proviso. The word 'appeal' does not mean the act of appealing, because an act of appealing cannot be required to be accompanied by a tangible thing. Only a tangible thing can be required to be accompanied by another tangible thing. Under the proviso an appeal is required to be accompanied by satisfactory proof of the payment. The proof is in the form of a document; it is therefore a tangible thing and when an appeal is required by a tangible thing the appeal itself must be a tangible thing, because it is impossible to refer to an act as accompanied by a tangible thing. This meaning is confirmed by the use of the word 'entertain' in the proviso because a tangible thing can be entertained if received or acted upon but not an act. An appellate court entertains a memorandum of appeal but cannot be said to entertain an act of appealing.
5. It follows that what the proviso requires is that a memorandum of appeal must be accompanied by satisfactory proof of the payment. Admittedly the memorandum of appeal in the instant case was not accompanied by satisfactory proof of the payment of the amount of Rs. 67 and odd admitted to be the tax due from the assessee. Subsequently the assessee produced satisfactory proof of the payment of this amount also, but the memorandum of appeal had already been presented earlier and it was impossible to speak of the proof furnished later as accompanying it. The proviso is fulfilled only when the memorandum of appeal and the satisfactory proof are presented together or simultaneously; it is only then that it can be said that one is accompanied by the other. If one is presented sometime after the other, though they may be said to co-exist after the former is presented, it can never be said that the other accompanied the former. There is an idea of motion in the word 'accompanying', and it does not mean coexistence. When the memorandum of appeal was in motion at the time of its being presented to the Judge (Appeals) the satisfactory proof also should have been in motion, i.e., presented at the same time. When the proof was furnished, only the proof could be said to be in motion and not the memorandum of appeal which was lying stationary with the Judge (Appeals) and an article in motion cannot be said to accompany a stationary article.
6. The same result is reached when the matter is looked at from another aspect. Section 9 clearly requires that the satisfactory proof of the payment must be furnished within 30 days from the date of service of a copy of the order appealed from. Since the act of appealing is required to be done within 30 days and since it is required to be accompanied by satisfactory proof of the payment, it follows that the satisfactory proof of the payment also must be furnished within 30 days and if it is not, there is no compliance with the proviso. Here the satisfactory proof of the payment was furnished after the expiry of 30 days.
7. It was contended by Sri S.S. Varma that there was a notional return of the memorandum of appeal and its re-presentation along with the satisfactory proof of the payment when the satisfactory proof was furnished. A legal fiction is a creation of statute; it is not open to a Court to indulge in a legal fiction and certainly it is not open to it to indulge in one simply with the object of circumventing statutory provision. When what is meant by the proviso is that satisfactory proof of the payment must go in company with a memorandum of appeal, it is not open to a Court to hold that satisfactory proof of payment which did not go in company with a memorandum of appeal must be deemed to have gone in company with it. This would amount to acting in flagrant defiance of the statute. Moreover it would not help the assessee if the Court indulges in such legal fiction because then it would mean that the memorandum of appeal was re-presented, accompanied by satisfactory proof of the payment on 27th November, 1953, by which date the right of appeal had expired.
8. It is not necessary to go into the question of what is meant by 'entertain', because whatever may be the meaning of the word, if the condition precedent is not fulfilled the appeal cannot be entertained. Here the condition precedent was not fulfilled because the memorandum of appeal was not accompanied by satisfactory proof of the payment and, therefore, it could not be entertained. If it could not be entertained the Judge (Appeals) was not required to keep it pending with him and could reject it. If he could not entertain it there was no clear alternative but to reject it.
9. We were referred to Commissioner of Income-tax v. Filmistan Ltd. : 42ITR163(SC) , in which it was held that an appeal filed under Section 30 of the Income-tax Act is deemed to be filed on the date on which the tax is paid, but the language of the proviso to Section 9(1) of the Sales Tax Act is quite different from that of Section 30 of the Income-tax Act. Section 30 does not. require that proof of the payment of the tax must 'accompany' the memorandum of appeal. Under Section 30 ' no appeal shall lie...unless the tax is paid' and it may be said that if a memorandum of appeal is presented first and then the tax is paid the appeal lies with effect from the date of payment. The argument comes to this that so long as the tax was not paid there was no appeal. (because no appeal can lie unless the tax is paid) but the memorandum of appeal has been presented and on the payment of the tax an appeal came into existence. This line of reasoning is not open in a case governed by Section 9(1) of the Sales Tax Act which insists upon a memorandum of appeal going in company with proof of the payment.
10. We were also referred to Nagendra Nath v. Suresh . It does not contain anything material in the present case; the Judicial Committee simply interpreted 'appeal' occurring in Article 182(2) of the Limitation Act. The question before us is not whether there was an appeal or not, but whether the appeal had been accompanied by proof of the payment. An appeal may be said to be there even though it is defective but an appeal cannot be said to be accompanied by proof of the payment if the latter is furnished at a later stage.
11. There is nothing in the rules giving any assistance to the assessee. On the contrary Sub-rule (2) of Rule 66 supports the interpretation that we have placed on the proviso that 'appeal' in it means a memorandum of appeal. The State Government had power to make a rule that a challan showing deposit in the treasury of the admitted tax is the only satisfactory proof that can accompany a memorandum of appeal. Under Rules 65(3) and 66(2) a memorandum of appeal is required to be accompanied by certain documents and it was contended that if those documents are furnished at a later stage the memorandum of appeal would not be rejected but that is because there is no law requiring that an appeal shall not be entertained unless it is accompanied by them. A positive requirement that a certain act shall be done is different from a prohibition on the doing of an act if a certain thing is not done. The proviso that 'no appeal shall be entertained unless it is accompanied by satisfactory proof of the payment' cannot be placed on the same footing as the proviso that 'the memorandum of appeal shall be accompanied by a certified copy.' Rule 67(2) empowers a Judge (Appeals) to return the memorandum of appeal if it is not in order for correction and re-presentation or to allow it to be amended there and then. Consequently the effect of failure to furnish satisfactory proof of the payment simultaneously with a memorandum of appeal cannot be equated with the effect of failure to comply with Rules 65(3) and 66(2).
12. What is meant by a memorandum being in order within the meaning of Rule 67(2) is that it complies with all the requirements of law and not merely those contained in Rules 65(3) and 67(1). That it is accompanied by a certified copy of the order appealed from and a challan showing deposit in the treasury of the admitted tax is as much. required to make it in order as other requirements. The Judge (Appeals) would have been bound to admit it only if it had been in order ; as it was not, he could reject it under Sub-rule (3) of Rule 67. The defect in it was not curable because, as we explained earlier, it was impossible for the memorandum of appeal to go in company with satisfactory proof of payment and, therefore, no purpose was to be served by the Judge returning it to the assessee for correction and re-presentation.
We, therefore, answer question No. 1 in the negative.
Question No. 2 does not arise.
13. We direct that copies of this Judgment shall be sent to the Judge (Revisions) Sales Tax and the Commissioner, Sales Tax, U.P., as required by Section 11(6) of the Sales Tax Act under the seal of the Court and the signature of the Registrar. We further direct that the Commissioner, Sales Tax, will get his costs of this reference from the assessee. Counsel's fee is assessed at Rs. 100.