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Joharimal Amritlal Nemani Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
CourtSales Tax Tribunal STT Mumbai
Decided On
Judge
Reported in19567STC263Tribunal
AppellantJoharimal Amritlal Nemani
RespondentThe State of Bombay
Excerpt:
.....of sales tax had no right to require the payment of any part of the tax due before admitting the revision application.in section 21 which relates to appeals there is a proviso which reads, "provided that no appeal against an order of assessment, with or without penalty shall be entertained by the said authority unless it is accompanied by satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred". no such provision is to be found in section 22. it is, however, provided in rule 48 of the bombay sales tax rules that no application for revision of any order of assessment with or without penalty, passed in an appeal shall be entertained by any authority unless it is satisfied that the tax with penalty, if any, in respect of which.....
Judgment:
1. This is a revision application against the order of the Additional Collector of Sales Tax dismissing an application for revision of the order made by the Assistant Collector of Sales Tax, on the ground that though the applicants were required to make a payment of Rs. 200 within a period of 7 days and to produce the relevant chalan, no such payment was made nor any chalan produced. It has been contended by Shri Joshi for the applicants that in view of Section 22 of the Act of 1946 the Additional Collector of Sales Tax had no right to require the payment of any part of the tax due before admitting the revision application.

In Section 21 which relates to appeals there is a proviso which reads, "provided that no appeal against an order of assessment, with or without penalty shall be entertained by the said authority unless it is accompanied by satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred". No such provision is to be found in Section 22. It is, however, provided in Rule 48 of the Bombay Sales Tax Rules that no application for revision of any order of assessment with or without penalty, passed in an appeal shall be entertained by any authority unless it is satisfied that the tax with penalty, if any, in respect of which the application is made has been paid. It is contended that this rule is in conflict with the intention of the legislature indicated in Section 22, and that, therefore, this rule should be held as ultra vires. The proviso regarding payment in Section 21 was a mandatory provision which has subsequently been amended by adding a discretion to the appellate authority to reduce or to dispense with the payment of the tax or the penalty in such cases, and a similar provision has been inserted in Rule 48 also. When the Act was passed by the legislature in 1946, the intention no doubt was that in all cases of appeal the tax in question should be paid prior to admission of the appeal while there was no such provision as regards the revision application. There was, however, no prohibition of Section 22 against the requirement on the part of the revisional authority to pay the whole or part of the tax involved. It would thus seem that the legislature left the matter of requiring such payment to the discretion of the revisional authority. Therefore, in our opinion, Rule 48, as it first stood, by making previous payment of tax obligatory in the case of revision of orders passed in appeal should be regarded as ultra vires, but in its present form it recognises the fact that the previous payment of such tax is discretionary on the part of the authority concerned. That being so, we think that no objection can be taken on the ground of jurisdiction to the requirement made by the Additional Collector of Sales Tax that the assessee should pay Rs. 200 out of the tax held due by him before he could admit the revision application, and, therefore, when no such payment was made, his dismissal of the application must be held to be correct.

2. We have been referred in this connection to the decision of this Tribunal in the case of Shah Khimji Shamji v. The State of Bombay [1951] 2 Bom. S.T.T. S.D. 40. That was, however, a case of a revision where the order sought to be revised had not been passed in appeal. To this case, therefore, Rule 48 does not apply, and the decision in that case, therefore, cannot be regarded as a guide in deciding on the facts of the present case. Similarly, our decision in Revision Application No. 96 of 1954 given on the 1st February, 1955, also concerns the case of a revision application against an order passed in revision and not in appeal by the Additional Collector of Sales Tax.


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