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2011 DIGILAW 549 (JK)

Universal Enterprises v. Dy. Commissioner

2011-10-18

M.K.Hanjura

body2011
1. From the perusal of the file what comes to the fore is that after the date of the presentation of the appeal, the appellant has chosen to remain absent. This continuous absence of her shows that she is not interested in prosecuting this appeal. 2. Looking at the merits of the appeal It will be of essence to state here that the same has been preferred against the order dated 31-12-2010, passed by the Ld. Dy. Commissioner, Sales Tax (Appeals) (Appellate Authority), Jammu, in Appeal No. 36/DCJ/AP/ST/209-2010. The Appellate Authority has dismissed the appeal of the appellant summarily on the ground that the appellant has not filed proof of payment of 20% of the assessed tax and 50% of the penalty imposed on him. This according to the Appellate Authority is a statutory requirement as envisaged under clauses (b) & (c) of the 2nd Proviso to Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962. The appellant, it has been stated in the order was afforded an opportunity under Notice No: 36/ DCJ/AP/ST/2009-2010/288 dated 10-12-2010, to explain the reasons for such failure. The Ld. Counsel for the appellant appeared before the Dy. Commissioner, Commercial Taxes (Appeals)on 28-04-08, 01-09-2008, 10-10-2008 and 08-11-2008 every time seeking further time to do the needful. Every time his request was granted but despite that he did not take any step to explain the reasons. 3. The order of the Appellate Authority has to be maintained on the reasoning projected therein, i.e. the appellant was obliged to file proof of the payment of 20% of the assessed tax and 50% of the penalty imposed on him by the Assessing Authority, as per the requirement of clauses (b) and (c) of the 2nd proviso to Jammu and Kashmir General Sales Tax Act, 1962. 4. The terms of Section 11 clauses (b) and (c) are mandatory in nature as the word used is "shall". Section 11 (b) and (c) give the Appellate Authority the teeth to proceed in a matter. 4. The terms of Section 11 clauses (b) and (c) are mandatory in nature as the word used is "shall". Section 11 (b) and (c) give the Appellate Authority the teeth to proceed in a matter. Filing of the proof of payment of 20% of the amount of tax assessed and 50% of the penalty levied is a condition precedent for lodging an appeal before the Appellate Authority which, as per the explanation added to Section 11, can be relaxed only where the extension of the date of payment, is granted, by an order, made by the Commissioner, in exercise of the powers vested in him under section 8 of the Jammu and Kashmir General Sales Tax Act, 1962. This has not been done in this case. This condition cannot be waived by any other means or any other Authority. It has a binding force the intention being to ensure that the appellant is prosecuting the appeal with due diligence, in good faith and with an honest intention and not for the heck of it. There thus seems to be no reason to take a view contrary to the one expressed by the Appellate Authority in her order. 5. Viewed thus for all that has been said above the order of the Appellate Authority is confirmed and the appeal of the appellant is dismissed, File shall be consigned to records after due completion. Records summoned, if any, be returned forthwith. A Copy of this Order be sent to the Learned Commissioner, Commercial Taxes headquartered at Srinagar, for his perusal and information. Announced.