Judgment :- Radhakrishna Menon, J. Revision petitioner is the assessee. 2. The year of assessment is 1982-83. The order of assessment for the year was under challenge before the appellate Assistant Commissioner; who by order dated 22-6-1989, dismissed the appeal entering the finding that the appeal is not maintainable as the revision petitioner failed to produce proof: of payment of admitted tax. The revision petitioner filed a second appeal against that order before the appellate Tribunal. As the appeal was filed out of time the petitioner had moved an application to condone the delay in filing the appeal. The appellate Tribunal allowed the application to condone the delay and consequently entertained the appeal 3. Yet another application, the petitioner had filed, seeking condonation of delay in paying the admitted tax, however was dismissed by the Tribunal by order dt.10th June, 1991. The order reads: "Heard both sides. We have already concluded that the second appeal filed before us was not maintainable due to non-payment of admitted tax. The petition for condonation of delay in the payment of admitted tax is therefore infructuous. Hence the petition is rejected and dismissed". Simultaneously the appellate Tribunal dismissed the appeal also. It is this order of the appellate Tribunal that is under challenge in this revision petition. 4. The question arising for consideration is: Whether the appellate Tribunal has the jurisdiction to entertain the appeal against the order passed by the appellate Assistant Commissioner, whereby, the appeal, the assessee had filed against (reassessment order without producing proof of payment of admitted tax, stood dismissed. The answer depends upon the construction of the second proviso to S.14 of the 1125 Act corresponding to the second proviso to sub-section 1 of S.34 of the K.G.S.T. Act, for short, The Act. We shall now reproduce that proviso: "appeals:- (1) Any assessee objecting to an assessment made on him under S.12, subsection (2), may, within thirty days from the date on which he was served with notice of the assessment, appeal to such authority as may be prescribed: Provided further that no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be".
The plain and unambiguous language employed in this proviso makes it very clear that unless the appeal is accompanied by satisfactory proof of the payment of tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be, the appeal is not entertainable. 5. It is one thing to say that an appeal is competent; but it is another thing to say that the appeal is entertainable. It is not as if that every appeal that is maintainable is also entertainable. An appeal can be said to be entertainable only if the same is not only maintainable but at the same time requires to be considered on merits in terms of the provisions under which the appeal is filed. When once the appellate authority is of opinion that the appeal is not maintainable for non-compliance with the provisions of the Act, the appellate authority has no other alternative but to dismiss the same. On the dismissal of the appeal, the appellate authority becomes functus officio unless it be that the statute which created the appellate authority, contains provisions under which the appeal can be entertained again after setting aside the order dismissing the appeal. Neither the 1125 Act, nor for that matter, the Act contains any provision under which the first appellate authority can restore the appeal on to file and entertain the same after setting aside the order dismissing the appeal. That order dismissing the appeal on the ground that it is not entertainable no doubt, is an appealable order within the meaning of S.15A of the 1125 Act corresponding to S.39 of The Act. The only question the appellate Tribunal can consider in such appeals is whether the first appellate authority was well within its jurisdiction to have the appeal dismissed on the ground stated in the order. When once the appellate Tribunal is satisfied that the appeal was dismissed for want of proof of payment of the admitted tax, the appellate Tribunal necessarily has to dismiss the appeal without going into the merits of the same. The appellate Tribunal under the circumstances, in our view, has no jurisdiction to direct the first appellate authority to entertain the appeal although there is proof of payment of the admitted tax subsequent to the dismissal of the appeal.
The appellate Tribunal under the circumstances, in our view, has no jurisdiction to direct the first appellate authority to entertain the appeal although there is proof of payment of the admitted tax subsequent to the dismissal of the appeal. Considered in the light of the above principle of law, the revision is liable to be dismissed. Accordingly the same is dismissed.