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Jagdish Rai Gupta Vs. State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 3662 of 1972
Judge
Reported inAIR1983P& H382
ActsPunjab Passengers and Goods Taxation Act, 1952 - Sections 15, 18 and 22; Punjab Passengers and Goods Taxation (Amendment) Act, 1967
AppellantJagdish Rai Gupta
RespondentState of Haryana and ors.
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 9. 1972 on the ground that the petitioner failed to deposit the above said amount of tax and penalty before the filing of the appeals. provided further that such authority if satisfied..........authority are impugned on the ground that the petitioner was not under any obligation to make prior deposit of the tax and penalty for maintaining the appeals. according to learned counsel, the provisions of t he haryana amendment act no. 7 of 1967 vide which two provisos attached to s. 15 of the act had deliberately been dropped makes this position more than clear. in order to appreciate the argument. the provisions of s. 15 as it existed prior to the amendment and subsequent thereto need to be noticed. this section as it stood prior to the amendment read as follows:--'an appeal shall lie to the appellate authority appointed by the state government ...... within 60 days of the passing of any order appealed against. provided that no appeal shall be entertained by such authority of.....
Judgment:
ORDER

1. Learned counsel for the parties are agreed that these two writ petitions Nos. 3662 and 3871 of 1972 can be disposed of through a common order as in these identical questions of law and fact have been raised. Form the years 1970-71 and 71-72 the Excise and Taxation Officer (Enforcement) Ambala Cantt. through two different orders assessed the petitioner to pay certain amount of goods tax and penalty thereon. Both these orders were challenged by the petitioner before Deputy Excise and Taxation Commissioner (Appeals) Ambala under S. 15 of the Punjab Passengers and Goods Taxation Act, 1952(for short, the Act). Both these appeals have been dismissed by the said Authority vide its order Annexure 'G' (in both the petitions) dated Nov. 9. 1972 on the ground that the petitioner failed to deposit the above said amount of tax and penalty before the filing of the appeals.

2. These orders of the appellate authority are impugned on the ground that the petitioner was not under any obligation to make prior deposit of the tax and penalty for maintaining the appeals. According to learned counsel, the provisions of t he Haryana Amendment Act No. 7 of 1967 vide which two provisos attached to S. 15 of the Act had deliberately been dropped makes this position more than clear. In order to appreciate the argument. the provisions of S. 15 as it existed prior to the amendment and subsequent thereto need to be noticed. This section as it stood prior to the amendment read as follows:--

'An appeal shall lie to the appellate authority appointed by the State Government ...... within 60 days of the passing of any order appealed against. Provided that no appeal shall be entertained by such authority of tax assessed has been paid: Provided further that such authority if satisfied that an owner is unable to pay tax assessed may. For reasons to be recorded in writing entertain an appeal without such tax having been paid'.

3. After amendment the noted two provisos were dropped and the section now reads as follows:--

'15. Appeals.--(1) An appeal shall be to the appellate authority appointed by the Statement Government in this behalf. against any original order passed under this Act within sixty days of the passing of such order or within such further period as the appellate authority may, for sufficient cause. Allow.

(2) Save as provided in Section 18. An order passed by the appellate authority shall be final.'

4. The stand of the respondent-Authorities however is that though S. 15 of the Act was amended as indicated above yet the provisions of R. 25(1) dealing with the mode and manner of filing appeals continue to exist as it was and this rule made it incumbent of the petitioner to deposit the tax and the penalty before preferring the appeals to the appellate authority. It is further pointed out that in view of the provisions had no option but to dismiss these for non compliance of r. 25. These two Rules read as follows:--

'25. (1) The memorandum of appeal shall bear court-fee of the value of three rupees and it shall contain the following particulars:--

(a) the date of the order appealed against:

(b) the name and designation of the officer who passed the order and:

(c) the grounds of appeal briefly but clearly set out.

(2) It shall be accompanied by a certified copy of the order appealed against;

(3) It shall be endorsed by the appellant or his agent as follows:--

(a) That the amount of tax assessed and penalty)if any imposed has been paid : and

(b) that to the best of his knowledge and belief the facts set out in the memorandum are true.

(4) It shall be signed by the applicant or his agent.

26. The appeal may be summarily rejected. if the appellant fails to comply with any of the requirements of R. 25.'

5. After a careful consideration of the contentions raised by the learned counsel for the parties. I do not find any merit on the stand taken by the respondent-Authorities. The amendment of the section. as already indicated. makes it amply clear that the legislature in its wisdom had deliberately dropped the above noted two provisos to that section which required the prior deposit of tax before the entertainment of an appeal by an aggrieved assessee. It appears that the Government somehow omitted to amend R. 25 in the light of the amendment of S. 15 of the Act. It is well laid down that a rule framed under the Act cannot add. Amend or alter the provisions of the Act itself. If no condition with regard to the prior payment of tax has been laid down in the Act i.e. S. 15 then no rule can possibly add to that section and lays down that unless such a prior deposit is made. the appeal would be treated as incompetent. Learned counsel for the Authorities however points out that while amending S. 15 of the Act vide Amendment Act (No. 7 of 1967) S. 22 of the Act authorising the State Govt., to frame the requisite rules under the Act too was amended and cls. (d) and (f) of the same were substituted. According to the learned counsel. Clause (f) authorised the State Government to lay down the manner in which the appeal can be preferred. This is true that the State Government is competent to lay down the manner of filing an appeal in terms of S. 15 of the Act. To my mind. The question of prior payment of tax or penalty has nothing to do with the manner of preferring an appeal. But for sub-clause (3)(a) of R. 25 rest of t he clauses of that rule. Undoubtedly lay down the manner in which the appeal has to be preferred. Al already pointed out. sub-l. (3) of this rule was framed when S. 15 as it originally stood was in force. Now after the amendment, if an assessee has to deposit the tax or the penalty before preferring an appeal and rather this appears to have deliberately been dropped then sub-rule (3) Clause i. e. (3)(a) of R. 25. It appears to be redundant after the amendment of S. 15 of the Act vide Haryana Amendment Act m No. 7 of 1967.

6. For the reasons recorded above these petitions are allowed and the impugned orders of the appellate authority Annexure (G) are set aside in both then petitions and are quashed. the necessary consequence of this is that these cases go back to the said authority for deciding the appeals of the petitioner afresh in accordance with law and the observations made above. I. however. make no order as to costs.

7. Petitions allowed.


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