Skip to content


Ram Sewak Hari Om Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 7764 of 1971
Judge
Reported in[1974]33STC453(All)
AppellantRam Sewak Hari Om
RespondentSales Tax Officer and ors.
Appellant AdvocateS.P. Gupta, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
- - in these circumstances, we are of the opinion that the order passed by the appellate authority rejecting the petitioner's appeals as incompetent is bad in law and the same is quashed......was allowed. the notification was struck down as ultra vires and a mandamus was issued to the sales tax officer to refund to the petitioner the tax deposited by him in respect of the turnover of bricks. the petitioner accordingly did not deposit any tax but wrote a letter to the sales tax officer to adjust the admitted tax against the refund due to him. as the appeals were not accompanied by the proof of payment of the admitted tax, the appeals were registered as defective. the petitioner then filed before the appellate authority certified copy of his application to the sales tax officer for adjustment of the admitted tax. the appellate authority accepted the petitioner's contention that he was entitled to the adjustment of the refund against the admitted tax. the appellate.....
Judgment:

R.L. Gulati, J.

1. The petitioner is engaged in the business of manufacture and sale of bricks. He was assessed to tax on the turnover of bricks under the U.P. Sales Tax Act for the assessment years 1967-68 and 1968-69 at 7 per cent on account of a notification issued under Section 3-A of the Act. He filed two separate appeals against the two assessment orders in question. The appeals were to be accompanied by satisfactory proof of the payment of tax as provided by the first proviso to Section 9 of the Act. It appears that the petitioner had earlier filed Writ Petition No. 1474 of 1969 challenging the notification under Section 3-A with regard to the bricks. That writ petition was allowed. The notification was struck down as ultra vires and a mandamus was issued to the Sales Tax Officer to refund to the petitioner the tax deposited by him in respect of the turnover of bricks. The petitioner accordingly did not deposit any tax but wrote a letter to the Sales Tax Officer to adjust the admitted tax against the refund due to him. As the appeals were not accompanied by the proof of payment of the admitted tax, the appeals were registered as defective. The petitioner then filed before the appellate authority certified copy of his application to the Sales Tax Officer for adjustment of the admitted tax. The appellate authority accepted the petitioner's contention that he was entitled to the adjustment of the refund against the admitted tax. The appellate authority passed an order dated 17th October, 1971, declaring the appeals to be in order. Thereafter, the Sales Tax Officer again agitated the question before the appellate authority that the petitioner's appeals were not competent for want of deposit of admitted tax. The appellate authority by his order dated 6th February, 1971, called upon the Sales Tax Officer to show cause within one month as to why the petitioner was not entitled to the adjustment claimed by him. The appellate authority stated in the order that if sufficient cause was not shown within one month the appeals shall be deemed to be in order. No cause was shown by the Sales Tax Officer and thus the appeals were deemed to have been competent.

2. In the meantime U.P. Amendment Act No. 20 of 1971 was promulgated which validated the levy of tax on the sales of bricks at 7 per cent. When the appeals were taken up for final hearing the appellate authority rejected the appeals on the ground that in view of the amendment in the law the petitioner was no longer entitled to the refund and, as such, his appeals were defective. The petitioner has challenged this order. He has also challenged the validity of the Amendment Act.

3. So far as the Second contention, namely, the one relating to validity of the Amendment Act is concerned, the same must be rejected in view of the decision of this court in Mohan Lal Verma v. State of Uttar Pradesh and Anr. [1972] 29 S.T.C. 398, where a Division Bench of this Court has held that the Amendment Act is intra vires.

4. As regards the first contention, we are of the opinion that the petitioner is entitled to the relief claimed by him. The appeals once having been rejected as defective were subsequently held to be in order by a specific order of the appellate authority. The effect of that order was that the appellate authority had accepted the plea of the petitioner that, in the circumstances of the case, the admitted tax due from the petitioner should be deemed to have been paid. The appeals having been admitted they could not be held to be not maintainable as a result of the subsequent change in law. The order passed by the appellate authority admitting the appeal was not affected by the change. As held by the Supreme Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner [1968] 21 S.T.C. 154 (S.C.), the question as to whether an appeal is entertainable or not is to be decided when the appeal is first taken up for hearing. Once the appeals were admitted as proper appeals they could not be dismissed on the ground that by reason of a subsequent change in law the petitioner was not entitled to the refund claimed by him. Moreover, the mandamus issued by this court for the refund of the tax is still in operation. Unless that order is withdrawn, the Sales Tax Officer is bound to give effect to it. The learned standing counsel states that an application for the review of the judgment of the High Court in the writ petition mentioned above has already been filed and the same is pending. That, however, does not alter the position. So long as that order is not discharged, it remains in operation. In these circumstances, we are of the opinion that the order passed by the appellate authority rejecting the petitioner's appeals as incompetent is bad in law and the same is quashed. The petitioner's appeals shall be restored to their original numbers and shall be heard and decided on merits in accordance with law. The petitioner is entitled to the costs of this petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //