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2011 DIGILAW 661 (JK)

Waves Food Pvt. Ltd. v. Dy. Commissioner, Commercial Taxes (Appeals), Jammu

2011-11-25

M.K.Hanjura

body2011
1. This appeal has been preferred against the order dated 03-12-2008, passed by the Ld. Dy. Commissioner, Commercial Taxes Appeals (Appellate Authority), Jammu, in Appeal No. 198/DCJ/AP/ST/2008-2009. The Appellate Authority has dismissed the appeal of the appellant summarily on the ground that the appellant has not filed proof of payment 5% of the penalty imposed in the order impugned. This according to the Assessing Authority is required under clause (c) of the 2nd Proviso to Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962. He was afforded an opportunity under Notice No: 198/ DCJ/AP/ST/2008-2009/2042 dated 30-10-2008 sent under register cover vide Regd. No. 538 dated 12-11-2008, to ractify this defect. Nobody appeared on the due date nor was the needful done, as a corollary to which the appeal of the appellant was dismissed. The appeal has also been held to be barred by time. 2. From the perusal of the Section 11 Supra, what comes to the fore is that the deposit of 5% of the penalty where the appeal is against the order of imposition of penalty, is a statutory requirement. The terms of Section 11 clause (c) are mandatory in nature as the word used is "shall". Section 11 (c) give the Appellate Authority the teeth to proceed in a matter. Filing of the proof of payment 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, 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. 3. Risking repetition what is reiterated here is that the statutory requirements, that are mandatory in nature, have not been complied with by the appellant. The appeal as such cannot be entertained. There thus seems to be no reason to take a view contrary to the one expressed by the Appellate Authority in her order. 3. Risking repetition what is reiterated here is that the statutory requirements, that are mandatory in nature, have not been complied with by the appellant. The appeal as such cannot be entertained. Therefore without dwelling upon the other issues raised in the appeal the same is liable to be dismissed on this score alone. Viewed thus 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.