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Banarsi Das Radhey Shyam Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number S.T.R. Nos. 104 and 105 of 1985
Judge
Reported in[1986]61STC379(All)
AppellantBanarsi Das Radhey Shyam
RespondentState of Uttar Pradesh and ors.
Appellant Advocate A.N. Mahajan and ; M.B. Saxena, Advs.
Respondent Advocate The Standing Counsel
DispositionPetition dismissed
Excerpt:
- - and secondly, that even if there was a deficiency of court-fee, the appeals could not have been rejected as being defective, but an opportunity should have been afforded to the assessee to make up the deficiency good and then the appeals should have been disposed of on merits. the tribunal, however, will give opportunity to the assessee to make the deficiency in the court-fee good and if the court-fee is paid then the appeals will be decided on merits......assessee. the latter preferred appeals to the assistant commissioner (judicial) who set aside the assessment orders and remanded the case to the assessing authority for passing a fresh assessment order. against the said orders of the a. c. (j), the assessee went up to the tribunal in second appeal. both the appeals were dismissed by the tribunal in limine on the ground that the court-fee of rs. 15 each was not proper and that the assessee should have paid the court-fee at the rate of 7| per cent of the disputed tax within the meaning of section 32(1)(b) of the u.p. sales tax act, 1948.2. aggrieved the assessee has come up in revision. i have heard learned counsel for the parties. the submissions of the learned counsel for the assessee are twofold : firstly, that the assessment orders.....
Judgment:

Om Prakash, J.

1. These are the two revisions for the assessment years 1979-80 and 1981-82 by the assessee against the consolidated order of the Tribunal dated 17th December, 1984. The tax of Rs. 71,500 and Rs. 2,98,000 was imposed for the assessment years 1979-80 and 1981-82 respectively by the assessing authority ,on the assessee. The latter preferred appeals to the Assistant Commissioner (Judicial) who set aside the assessment orders and remanded the case to the assessing authority for passing a fresh assessment order. Against the said orders of the A. C. (J), the assessee went up to the Tribunal in second appeal. Both the appeals were dismissed by the Tribunal in limine on the ground that the court-fee of Rs. 15 each was not proper and that the assessee should have paid the court-fee at the rate of 7| per cent of the disputed tax within the meaning of Section 32(1)(b) of the U.P. Sales Tax Act, 1948.

2. Aggrieved the assessee has come up in revision. I have heard learned counsel for the parties. The submissions of the learned counsel for the assessee are twofold : firstly, that the assessment orders having been set aside by the A. C. (J), there remains no disputed tax and, therefore, the question of paying the court-fee at the rate of 7f per cent on disputed tax does not arise; and secondly, that even if there was a deficiency of court-fee, the appeals could not have been rejected as being defective, but an opportunity should have been afforded to the assessee to make up the deficiency good and then the appeals should have been disposed of on merits.

3. So far as the first contention is concerned, I do not find any force in it. Admittedly, the assessee did not challenge only the remand having been ordered by the A. C. (J), but the assessee also prayed that its books of account be accepted and no additional demand of tax be raised. If the contention of the assessee that the assessment orders having been set aside, there was no disputed tax, is accepted to be correct then how can the assessee raise the prayer that its declared turnover be accepted, and the demand of tax raised be cancelled. When against the order of the A. C. (J), appeal is filed before the Tribunal challenging the assessment orders then the order of the A. C. (J) does not stand concluded and that does not become final and, therefore, it cannot be said that the assessment order is fully wiped out and there is no effect of that. If the assessment order disappears soon after the* order of the A. C. (J) setting aside the former, then the assessee will not be able to challenge the same before the Tribunal and the assessee cannot seek the relief that the tax assessed be cancelled and the declared turnover be accepted. So long as the right of appeal exists and the assessment order is challenged, it cannot be said that the assessment order has extinguished and, therefore, there is no disputed tax. It is implied in the relief claimed by the assessee itself that the assessment order continued to be there so long the right of appeal continues. Therefore, I agree with the view of the Tribunal that ad valorem court-fee should have been paid by the assessee at the rate of 7 per cent of the disputed tax.

4. Coming to the second contention, I agree with the assessee that the Tribunal should have given suitable opportunity requiring it to pay the court-fee and the appeals should not have been rejected straightway branding them as defective.

5. In the result, both the revisions are dismissed. The Tribunal, however, will give opportunity to the assessee to make the deficiency in the court-fee good and if the court-fee is paid then the appeals will be decided on merits. If the court-fee is not paid as per direction then only both the appeals will be rejected for want of payment of court-fees. The parties will bear their own costs.


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