C.S.P. Singh, J.
1. The revising authority has referred the following questions of law for the opinion of this Court:
(1) Where an appellate authority has granted partial waiver under the second proviso to Section 9(1) of the U.P. Sales Tax Act and has fixed a specific time during which the amount not waived may be deposited and the appellant deposits the amount beyond the time fixed by the order of waiver but within the period of limitation prescribed for filing of the appeal, is the deposit a valid and sufficient deposit for the-entertainability of the appeal under Section 9(1) of the Act?
(2) Whether, in the event of the appellant not depositing the amount mentioned in question No. (1) within the time fixed by the appellate authority, the appellant was bound to obtain extension of time from the appellate authority or, in the alternative, to deposit the entire 20 per cent of the assessed tax under Clause (b) of the first proviso to Section 9(1) of the Act within the time prescribed for filing of the appeal?
2. This reference is being treated as a revision in view of the amendment in the law.
3. An assessment was made for the year 1970-71, and a copy of the assessment order was served on the assessee on 26th April, 1975. He filed an appeal on 6th May, 1975. The assessee had not filed any return with the result that Sub-clause (b) of the first proviso to Section 9(1) was attracted to the case, and before an appeal could be entertained he had to deposit 20 per cent of the amount of tax assessed. The appellant did not deposit the tax, but applied for waiver. Order granting waiver to the extent of fifteen per cent of the tax was made, and the assessee was directed to deposit the balance of five per cent by 22nd May, 1975. The assessee did not deposit this by 22nd May, 1975, but deposited it on 24th May, 1975. The appeal finally came up for hearing on 17th November, 1975, when the appellate authority dismissed it on two grounds, the first being that the appeal was time-barred, inasmuch as the assessment order according to the appellate authority was served on the assessee on 7th April, 1975, and, secondly, on the ground that the assessee had not deposited five per cent tax as directed within the time granted.
4. On a revision being filed, the revising authority held that the assessee was served with the assessment order on 26th April, 1975, and as such the appeal which was filed on 6th May, 1975, was within time. He, however, upheld the order passed by the appellate authority on the ground that the appeal could not be entertained as the assessee had not deposited five per cent of the tax within the time fixed by the appellate authority.
5. The counsel for the assessee contended that as the limitation for filing the appeal was up to 25th May, 1975, and as the assessee had deposited five per cent of the disputed tax on 24th May, 1975, the appeal could not be dismissed as being defective or time-barred, as the required deposit had been made before the limitation for the appeal had not run out. There is a fallacy in this argument. Clause (b) of the proviso to Section 9 insists on the deposit of twenty per cent of the assessed tax, and the opening part of the proviso lays down that unless the appellant complies with this requirement, the appeal should not be entertained. On 24th May, 1975, the assessee had not deposited twenty per cent of the assessed tax, but only five per cent as directed by the appellate authority, while partly waiving the deposit required by Clause (b) of the proviso to Section 9. Thus, there was deficiency in the deposit on 24th May, 1975. The assessee did not deposit the balance amount even when the appeal came up for hearing on 17th November, 1975. As the deposit required by the proviso to Section 9 had not been made by the assessee, the appeal could not be entertained by the appellate authority. In such a situation, when the appeal came up for final disposal on 17th November, 1975, it could not be disposed of on merits and had to be dismissed. So far as the necessity for the assessee obtaining extension of time from the appellate authority as regards five per cent required to be deposited under the waiver order, it was obviously necessary for him to do so as the time fixed by the order had run out. The only other course open to the assessee to remedy the defect in the appeal was to deposit the entire tax, i. e., 20 per cent of the assessed tax before the limitation for the appeal expired on 25th May, 1975. The assessee, however, as we have seen, did not deposit twenty per cent of the disputed tax when the appeal came up for hearing. The appeal, as such, was rightly dismissed.
6. The revision is, however, dismissed. A copy of this order will be sent to the revising authority. There shall be no order as to costs.