# 8 LAKSHMI RAlTAN ENGINEERING WORKS LTD v. ASnT. COMMR. SALES TAX, KANPUR&: ANR

- **Citation:** [1968] 1 S.C.R. 505
- **Court:** Supreme Court of India
- **Decided:** 1967-09-12
- **Case number:** Civil Appeal No. 1283 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-lakshmi-raltan-engineering-works-ltd-v-asnt-commr-sales-tax-kanpur-anr-4130
- **Pages:** 10

## Headnote

.8
LAKSHMI RAlTAN ENGINEERING WORKS LTD.
v.
ASnT. COMMR. SALES TAX, KANPUR&: ANR.
September 12, 1967
IM. HIDAYATULLAH, V. BH.UG.WA A'ID c. A. VAIDI.ALINGAM, JJ.]
UP. Salea-Taz Act (U.P. 15 of 1948) S. 9-Memorandum of
appeal-Cltallan showing deposit of tax, if necessary-U.P. Salestaz Rule•, 1948. r. 66(2)--Constitution of India. Art. 136--:Special
leai:e to appeal-Other remedies not e:rhausted-If can be g!llen.
The. appellant-assessee filed a memorandum. of appeal to the
Assistant Commissioner, Sales Tax. stating therem that the amount
of admitted tax had been paid and forfeited the statement by an
·C
affidavit. Before the hearing, he produced a certificate from the
Sales-T.ax Officer that the tax had been paid. The Assistant Commissioner relying on the Allahabad High Court's decision in Swa•-
tilca · Tllnnef'll, Jaimau v. Commissioner of Sales-tax, U .P. rejected
as defective the memorandum of appeal. holding that it was not
accompanied by the challan showing the . •posit of admitted tax
under s. 9 of the .Uttar Pradesh Sales Tax Act, 1948 and r. 66 of the
U.P. Sales-tax Rules. Against this order the assessee directly filed
D special leave to appeal to this Court without exhausting the remedies
of revision and reference provided in the Act. This Court granted
Special Leave and;
Hnn: The appeal must be allowed.
(i) By the \\~ord ··entertain" in the proviso to s. 9 is meant the
E
first occasion on which the Court take up the matter for consideration. It may be at the admission stage or if by the rules of that
Tribunal, the appeals are automatically admitted, it will be the time
of hearing of the appeal. But on the first occasion when the court
takes up the matter for consideration. satisfactory proof must be
presented that the tax was paid within the period of limitation
available for the appeal. Rule 66(2) lays down one uncontestable
P mode of proof which the Court will always accept but it does not
exclude the operation of the proviso when equally satisfactory
proof 1s made available to the officer hearing the appeal and it is
proved to his satisfaction that the payment of the tax has been duly
.made and in time. [512E-F; 513E-G]
In the present case. when the Assistant Commissioner took up
the appeal for consideration. satisfactory proof was available in' the
shape of a certificate.
G
Swastika Tanneru. of Jaimau v. Commissioner of Sales.tax. U.P.
Lucknow, 0963) 14 S.T.C. 518. disapproved.
Kundan Lal v. Jagannath Sharma. A.I.R. 1962 All. 547; Dhoom
Chand Jain v. Chaman Lal Gupta and Anr. A.l.R. 1962 All. 42: /iaii
Rahim Bux & Sons & Ors. v. Firm Samiullah & Sons, A.LR. 1963 All.
320, approved.
Iii) Thoul!h this Court would not ordinarily grant special leave
B to appeal against an order when other remedies were available and
had not been exhausted. there is no inflexible rule that this Court
wi.11 never entertain such an appeal. It would have been futile in
th1~ case for the assessee to have gone to the court of revision
which w~ _bound by the decision in Swastika Tannery of Jaimau
v. Comm1SS1oner of Sales-tax, U .P. and it would have been equally
SUPREME COURT REPORTS
[1968] 1 S.0.11.
futile· to have gone to the High Court on a reference. The matter A.
was more easily disposed of by giving special leave in this Court
and. this was one of those extra-ordinary cases in which the ends
of justice would be better served, by avoiding a circuity· of action
&nd by dealing with this matter in this Court directly. [513H-li14C]

## Text

.8
LAKSHMI RAlTAN ENGINEERING WORKS LTD.
v.
ASnT. COMMR. SALES TAX, KANPUR&: ANR.
September 12, 1967
IM. HIDAYATULLAH, V. BH.UG.WA A'ID c. A. VAIDI.ALINGAM, JJ.]
UP. Salea-Taz Act (U.P. 15 of 1948) S. 9-Memorandum of
appeal-Cltallan showing deposit of tax, if necessary-U.P. Salestaz Rule•, 1948. r. 66(2)--Constitution of India. Art. 136--:Special
leai:e to appeal-Other remedies not e:rhausted-If can be g!llen.
The. appellant-assessee filed a memorandum. of appeal to the
Assistant Commissioner, Sales Tax. stating therem that the amount
of admitted tax had been paid and forfeited the statement by an
·C
affidavit. Before the hearing, he produced a certificate from the
Sales-T.ax Officer that the tax had been paid. The Assistant Commissioner relying on the Allahabad High Court's decision in Swa•-
tilca · Tllnnef'll, Jaimau v. Commissioner of Sales-tax, U .P. rejected
as defective the memorandum of appeal. holding that it was not
accompanied by the challan showing the . •posit of admitted tax
under s. 9 of the .Uttar Pradesh Sales Tax Act, 1948 and r. 66 of the
U.P. Sales-tax Rules. Against this order the assessee directly filed
D special leave to appeal to this Court without exhausting the remedies
of revision and reference provided in the Act. This Court granted
Special Leave and;
Hnn: The appeal must be allowed.
(i) By the \\~ord ··entertain" in the proviso to s. 9 is meant the
E
first occasion on which the Court take up the matter for consideration. It may be at the admission stage or if by the rules of that
Tribunal, the appeals are automatically admitted, it will be the time
of hearing of the appeal. But on the first occasion when the court
takes up the matter for consideration. satisfactory proof must be
presented that the tax was paid within the period of limitation
available for the appeal. Rule 66(2) lays down one uncontestable
P mode of proof which the Court will always accept but it does not
exclude the operation of the proviso when equally satisfactory
proof 1s made available to the officer hearing the appeal and it is
proved to his satisfaction that the payment of the tax has been duly
.made and in time. [512E-F; 513E-G]
In the present case. when the Assistant Commissioner took up
the appeal for consideration. satisfactory proof was available in' the
shape of a certificate.
G
Swastika Tanneru. of Jaimau v. Commissioner of Sales.tax. U.P.
Lucknow, 0963) 14 S.T.C. 518. disapproved.
Kundan Lal v. Jagannath Sharma. A.I.R. 1962 All. 547; Dhoom
Chand Jain v. Chaman Lal Gupta and Anr. A.l.R. 1962 All. 42: /iaii
Rahim Bux & Sons & Ors. v. Firm Samiullah & Sons, A.LR. 1963 All.
320, approved.
Iii) Thoul!h this Court would not ordinarily grant special leave
B to appeal against an order when other remedies were available and
had not been exhausted. there is no inflexible rule that this Court
wi.11 never entertain such an appeal. It would have been futile in
th1~ case for the assessee to have gone to the court of revision
which w~ _bound by the decision in Swastika Tannery of Jaimau
v. Comm1SS1oner of Sales-tax, U .P. and it would have been equally
SUPREME COURT REPORTS
[1968] 1 S.0.11.
futile· to have gone to the High Court on a reference. The matter A.
was more easily disposed of by giving special leave in this Court
and. this was one of those extra-ordinary cases in which the ends
of justice would be better served, by avoiding a circuity· of action
&nd by dealing with this matter in this Court directly. [513H-li14C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1283 of
1967.
Appeal by special leave from the Order dated April 2 / 3. 8
1967, of the Court of Assistant Commissioner (Judicial) I, Sales
Tax, Kanpur Range, Kanpur in Appeal No. D.F. 78 of 1966.
I. P. Goyal and Sobhag Mal lain, for the appellant.
0. P. Rana, for the respondents.
The Judgment of the Court was delivered by
Hlciayatullall, J. This is an appeal by special leave against
an order 2/3 April, 1967, of the Assistant Commissioner (Judicial)
I. Sales Tax, Kanpur Range, Kanpur by which the Assistant
Commissioner rejected as defective the memorandum of appeal
filed by the present appellant against the assessment order passed D
by the Sales Tax Officer (S-1) Kanpur. The defect. according to
the Assistant Commissioner, was that the memorandum of appeal
(which had been filed well within time) was not accompanied by
the challan showing the deposit of admitted tax under s. 9 of the
Uttar Pradesh Sales Tax Act, 1948. The appellant did not file
an application for revision and did not also invite a reference to z·
the High Court of Allahabad but came direct to this Court by
special leave which was granted by us on August 23, 1967. At
. the first hearing of the petition, the Stat~ of Uttar Pradesh repre'
sented by Mr. O.P. Rana.. objected to the grant of special leave
inasmuch as the other provisions under which remedy could be
obtained under the Sales-tax Act had been
bypassed. At that
time, we overruled the objection and in the course of this judg· F
ment, we shall briefly indicate the reasons which had then pre·
vailed with us.
The facts of the case are as follows:
The appellant had
declared his turnover for the year 1964-65 at Rs. 3,70,941.7 P. on
which the admitted tax under the Act came to Rs. I l.135,58p.
The Sales-tax authorities, however, assessed his turnover at Rs. 30 G
lakhs on which tax was calculated at Rs. 90.000. The appellant
appealed to the Assistant Commissioner (Judicial> J, Sales-tax,
Kanpur Range, Kanpur. His appeal was filed on May 16. 1966.
the order of assessment and the demand notice having been served
on him on April 16, 1966. The appeal was therefore filed within
time. Section 9 of the . Act provides that no appeal against an R
assessment shall be ehtertained unless it. is accompanied by satisfactory proof of the payment of the amount of tax admitted by
the appellant to be due or of such instalments thereof as may have
b~come payable.
As is s.tated earlier, the admitted tax came to
LAKallYI RATTAN LTD. 11 • .&s,,rr. COllMR. (llitlay(l.tlllla71, J.)
507"
A Rs. ll,135.58 P. The appellant was required under this provisionc
of law to give satisfactory proof, at the time of the entertainment
of the appeal, that this tax was duly paid. It appears that the
appellant had paid a greater portion of the tax even before the
assessment order had been made, and a balance of Rs. 99.99 P'.
was due from him from the amount of admitted tax. This amount
B was deposited on April 26, 1966 before the appeal was filed by
him. He did not however present any proof of such deposit, be·
cause there is a dispute in the case whether the as>essee had
shown proof of it to the munsarim or not. As the finding is that
he had not shown it we shall proceed on the assumption that the
assessee had not furnished proof at the time of the filing of the
C appeal that the balance of tax had been paid. It is on this premise that the present appeal has proceeded before·us. On August
16, 1966, the assessee addressed a letter to the Sales-tax Officer
and asked for a certificate of payment of tax and this certificate
having been furnished he filed it on January 24, 1967 before the·
Assistant Commissioner. He also, as a matter of abundant caution, filed an application for condonation of delay under s. 9(6)
D of the Act read with s. 5 of the Indian Limitation Act. The order
against which the present appeal has been brought before us was
made on 2/3 April, 1967 and the appeal of the assessee was re'
jected, because in the opinion of the Assistant Commissioner s. 9
of the Act read with r. 66(2) had not been complied with since no
. proof had been given along with the memorandum of appeal that
B. · the tax had been paid. Simultaneously, the application for condo·
nation of delay was also dismissed. Against this order, the assessee has filed the present appeal..
The short question in this case is whether having made the·
deposit even before the appeal was filed and well within the 'Period
of limitation, the assessee could be deprived of his right of appeal
F under s. 9 of the Act Alternatively, it is to be considered whether
the proof of the payment of the admitted -tax had to accompany
. the memorandum of appeal as required by r. 66(2) and on failure
to furnish such proof. the appeal itself became incompetent. In
·support of his order the Assistant Commissioner relied on a deci·
sion of the Allahabad High Court reported in Swa:.tika Tannery
G of Jaimau v. Commissioner of Sales.fax. U.P. Lucknow(') in which
the learned Chief Justice of that Court and another learned Judge
have laid down that the proof of payment must be as required by
the rules and, therefore. the memorandum of appeal ought to be
accompanied by the Challan showing payment of tax before the
appeal can be said to be competent.
We shall refer to that ruling
B presently.
In this appeal, learned counsel for the assessee has relied
upon a number of authorities in which the interpretation runs
(') (19~3) 14 S.T.C. 518.
llUPRSllE COURT BKPOaTS
[1968] l B.O.L
counter to the decision of the learned Chief JU6tice just advel1ecl A
to and had coniended that s. 9 of the Act does not create the bar
which the ruling and the· Assistant Commissioner's reliance on
that ruling has created in the way of the appeal. His contention
is that if satisfactory proof is given before the appeal is heard or
·at any rate before it is admitted; the requirement of law under
s. 9 is satisfied and thljt it is not always incumbent to produce a B
challan with the memorandum of appeal, r. 66(2) notwithstanding.·
It is this point which has given rise to the great controversy before
us and the matter was argued at great length both at the time of
grant of special leave and today.
·
To consider the matter, we may begin by quoting s. 9 of the
Act. Section 9 which. gives the power of appeal provides as a
:follows:
"(}) Any dealer objecting to an order allowing t>r
refusing an application for exemption certificate
under cl. (b) of sub-section (I) of s. 4 or to an
order reftsing an application under s. 30 or to an
order imposing a penalty under s. IS-A or to an
D
assessment made under s. 7, 7-A. 7-B, 18 or 21,
may within 30 days from the date of service of the
copy of the order or notice of assessment, as the
case may be, appeal to such authority as may be
prescribed;
Provided that no appeal against an assessment shall
•
be entertained uri'less it is aceompanied by satisfactory
proof of the payment of the amount of tax admitted by
the appellant to-be due, or of such instalments thereof as ·
may have become payable:
..
.
.
.
.
.
.
-
.
p
Under s. 24 of the Act power has been conferred upon the State
Government to make rules to carry out the purposes of the Act
and in particular, to provide for all matters expressly required or
allowed by this Act to be prescribed. Under sub-s. (4) of that
section, it is provided that all rules made under the section shall
be published in the Gazette and upon such publication, shall have
effect immediately as if enacted in the Act and under the 5th sub- G
section, it is further provided that all rules made under the Act
shall be laid for fourteen days before the Legislature as $<>OD as
possible after they are made and shall be subject to such modifications as the Legislature may make during the session in whicb
·they are so laid. In exercise of this power, the State Government has framed the U.P. Sales-tax Rules, 1948.
Rules 66 and R
67 of these ru~s bear, among others, upon appeals. Sub-r. 1 of
r. 66 provides for the content of. the appeal by stating what the
memorandum of appeal shall specify in- relation to the name and
Jiddress of the appellant etc; We are not concerned with it Sub-r.
LAKBHJU RATTAN LTD. v. ABBI"!'. COMMR. (Hidayatvlfuh, J:)
509'
A 2 then states that "the memorandum of appeal sfrall be accom-·
panied by . . . . . . . . . a challan showing deposit in tlie Treasury of
the tax admitted by the appellant to be due or of such instalments
thereof as might have become payable." Rule 67 lays down how
the appeals have to be· presented. Sub-r. I provides that the
memorandum of appeal shall be presented by the appellant or his
B lawyer or duly authorised agent to the Assistant Commissioner
<Judicial) or may be sent by registered post addressed to the Assistant Commissioner,
(Judicial). Sub-r. 2 provides that if the
· memorandum of appeal is in order. the Assistant Commissioner,
(Judicial) shall admit it and on admission. the Reader of the Assistant Commissioner (Judicial) shall endorse thereon the date of its
presentation and shall register it in a book to be known as RegisC ter of Appeals. The third sub-rule says that if the memorandum
of appeal is not in .order., it may be rejected or returned after the
necessary endorsement on its back about the presentation and return to the applicant for correction and representation within
the time to be fixed by lhe Assistant Commissioner (Judicial) or
be amended then and there. Lastly sub-r. 4 provides that on adD mission of an appeal, the Assistant Commissioner (Judicial) shall
fix a date for hearing of the appea~ and may send for the record.
if necessary.
The contention of counsel for the assessee is that he had fully
complied with the requirements of s. 9 ·although not strictly as laid
dawn in .r. 66 which he characterised as directory. The contenB tion on the other side is that the rule lays down the only manner
of compliance with the provisions of the Section and in support
Counsel for the State refers to the provisions of s. 24(4) and (5) in
which it is stated that the rules on being framed become pan of
the· Statute. From this, counsel for the State infers thal there is
no other mode· of compliance except the one stated in the i"11es
11 · and as in this case that mode of compliance was not followed, the
appeal is rightly considered to be incompetent and properly reject·
ed. This in main represents the essence of the controversy between the parties.
·
'.f o begin with it mu.c be noticed that the. proviso merely
requires that the appeal ~hall not be entertained unless it is accomG panied by satisfactory proof of the payment of the amount of tax
admitted by the appellant to be
due. A question thus arises
what is the meaning of the word 'entertained" in this context?"
Does it mean that no appeal shall be received or· filed or d0es it
mean that no api;ieal shall be admitted or heard and disposed of
unless satisfa~tory p~oof is available? The dictionary meaning
B of the wor~ entertam' was. brought I? our notice by the parties,
and both sides agreed that 1t means either "to deal with or admit
t? consideratio~"· We are also of the same opinion. The ques.
tl~n. therefore, 1s at what stage can the appeal be said to be enter-
. tamed for the purpose ·of the applieation of the proviso?' Is it
510
SUPREJIE COURT REPORTS
[1968] l s,c.R.
'.entertained' when it is filed or is it 'entertained' whe·n it is ad· A
milted and the date is fixed for hearing or is it finally 'entertained'
-when it is heard and disposed of? ·Numerous cases exist in the
]aw reports in which the word 'entertained' or similar cognate· expressions have been interpreted by the
courts. Some of them
:from the Allahabad High Court itself have been brought to our
notice and we shall deal with them in due course. For. the pre- B
~sent we must say that if the legislature intended that the word
·'file' or 'receive' was to be used, there was no difficulty in using
'those words.
In some of the statutes which were brought to our
.notice such expressions have in fact been used. For example,
under Order 41. rule I of the Code of Civil Procedure it is stated
that a memorandum shall not be filed
o~ presented unless it is
accompanied etc.; in s. l 7 of the Small Causes Courts Act, the ex- O
pression is 'at the time of presenting tlie application'. In sec. 6
·of the Court Fees Act, the words ru;i: 'file' or 'shall be received'.
lt would appear from this that the legislature was not at a loss for
·words if it had wanted to express itself in such forceful manner as
'is now suggested by counsel for the State. It has used the word
·•entertain' and it must be accepted that it has used it advisedly. D
This word has come in for examination in some of the cases of
the Allahabad High Court and we shall now refer to them.
In Kundan Lal v. lagannath Sharma(') the Court was concerned with Order 21, rule 90, of the Code of Civil Procedure
·which had been amended by the High Court by changing the prowisions of the original Code. The changed rule is as follows:
B
"Provided that no application to set aside the sale
shall be entertained :
(a) upon any ground which should have been taken
by the applicant on or before the date on which
the sale proclamation was drawn up:
P
<(b) Unless the applicant deposits such amount not exceeding 12!% of the sum realised· by the sale or
furnishes such security as the court may in its discretion fix, except when for reasons to be recorded it dispenses with the requirements of this
c1ause ...... ".
G
The word 'entertain' is explained by a Divisional Bench of
'the Allahabad High Court as denoting the point of time at which
•an application to set aside the sale is heard by the court. The
expression 'entertain'. it is stated, does not mean the same thing
as the .filing of the application or admission of the application by B
'the court. A similar view was again taken in• Dhoom Chand
Jain v. Chamanla/ Gupta & Anr.(') in which the learned Chief
(') A.I.R. 1962 AIL 547.
(') A.LR 1962 All. 543.
LAKSHMI HATl'A~ LTD. v. ASSTT. comm. (lli·layqfullah, J,)
511
A Justice Desai and Mr. Justice Dwivedi gave the same meaning to
the expression 'entertain'. It is observed by Dwivedi J. that the
word 'entertain' in its application bears the meaning 'admitting to
consideration', and therefore when the court cannot refuse to take
an application which is backed by deposit or security, it cannot
refuse judicially to consider it.
In a single bench decision of the
B same court reported in Bawan Ram & Anr. v. Kunj Behari/a/(')
one of us (Bhargava, J.) had to consider the same rule. There the
deposit had not been made within the period of limitation and the
question had arisen whether the court could entertain the application or not.
It was decided that the application could not be
entertained because proviso (b) debarred the court from entertaining an objection unless the requirement of depositing the amount
C or furnishing security was complied with within the time prescribed.
In that case the word 'entertain' is not interpreted but it
is held that the court cannot proceed to consider the application
in the absence of deposit made within the time allowed by law.
This case turned on the fact that the deposit was made out of
time. In yet another case of the Allahabad High Court reported
D in Haji Rahim Bux & Sons and Ors. v. Firm Samiu/lah & Sons(')
a division bench consisting of Cheif Justice Desai and Mr. Justice
S. D. Singh interpreted the words of 0. 21, r. 90, by saying that
the word 'entertain' meant not 'receive' or 'accept' but 'proceed
to consider on merits' or 'adjudicate upon'.
In our opinion these cases have taken a correct view of the
E word 'entertain' which according to dictionary also means. 'admii
to consi,deration'. It would therefore appear that the direction
to the court in the proviso to s. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied
by satisfactory proof of the payment of the admitted tax. This
will be when the case is taken up by the court fo~ the first time.
F In the decision on which the Assislllnt Commissioner relied, the
learned Chief Justice (Desai C.J.) holds that the words 'accompanied by' showed that something tangible had to accompany the
memorandum of appeal. If the memorandum of appeal had to
be accompanied by satisfactory proof, it had to be in the shape
of something !3ngible, because no intangible thing can accompany
G a document hke the memorandum of appeal.
In our opinion.
making 'an appeal' the equivalent of the memorandum of appeal
is not sound. Even under 0. 41 of the Code of Civil Procedure.
the expressions "~pi:ieal" a~d "memorandum of appeal" are used
to denote two dtstmct thmgs. In Wharton's Law Lexicon, the
word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The
B appeal is the judicial examination; the memorandum of appeal
contains the grounds on which the judicial examination is invited.
(') A.l.R. 1961 All. 42.
(') A.l.R. 1963 All. 326.
51~
SUPREME COURT REFOBTS
[1968) 1 S.C.B.
For . purposes of limitation and for purposes of the rules of the A
Court it is. required that a written memorandum of appeal shall be
filed.
When the proviso speaks of the entertainment of the app~al. it means that the appeal such as was filed will not be admitted
to consideration unless there is satisfactory proof available of the
making of the deposit of admitted tax.
Now the complicating factor is the existence of the rule, and
here. the divergence of submission arises on whether the rules
can be regarded as mandatory or merely directory. It is quilt
Pbvious that the section as it stands only requires that at the time
E
of the consideration of the appeal. There should be satisfactory
proof that the admitted tax has been deposited.
It only says that
no appeal shall be entertained· unless accompanied by sati!factory C
proof of the payment of the tax.
This satisfactory proof ma;
take any form; in fact in thtl present case satisfactory proof was
tendered in the shape of a certificate from the Sales-tax Officer
that the admitted tax- had been deposited and well within time.
Under section 9 and its proviso as they stand, it is quite obvious
that 'entertainment' means the point of tinte when the appeal i:; D
being considered. There was thus satisfactory proof in the present case. No doubt. proof was not tendered following the method
required by the rules but the question is whether the rules can
make the section narrower by prescribing a particular mode. The
section is general; it provides that the court should accept satisfactory proof.
The rule requires that the memorandum of appeal E
shall be accompanied by the challan showing payment of tax. The
rule lays down one uncontcstable mode of proof which the Court
will always accept but it does not exclude the operation of the proviso when equally satisfactory proof is made available to the oflicer
hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time.
In this sense,
the rule can be regarded as· directory since it lays down one of F
those modes which will be unquestioned for its validitv. The
ether modes of proof are not necessarily shut out.
·
It is to be remembered that all rules of procedure are intended to advance justice and not to defeat it.
Here the right of
appeal has been made subservient to the payment of the admitted
tax.
If the admitted tax is paid and there is proof available that
it has been so paid, there exists no reason to create a second impe<liment in the way of the appeal. No doubt, rule makes it easy
for the assessee to bring satisfactory
proof in an unccintestable
manner. but the provision of the rule is not to the exclusion of
other satisfactory modes of proof. Suppose for instance that the
challan was lost and the time for the filing of the appeal was expiring, could or could not the person concerned say that he had
the certificate but had lost it and that he would produce a copy
of the challan from the Treasury or obtain a certificate from the
G
K
,.
'
r
Lillll.111 llAITA." LTD. V. Alll!T'r. COMJlR. (llidayatulla/i, J.)
ll)3
A Treasury Officer, CQuld he not obtain from the bank the discharged cheque by which the amount of tax was deposited by him
and produce it as tile discharged counterfoil of payment. All
·these modes of proof will be equally irrefutable. In the present
case the assessee had in his petition of appeid stated that the
amount of tax had been paid and had· fortified the statement by
B an affidavit. Before the hearing he produced a certificate from
the Sales-tax Officer that the tax had been paid. . The Assistant
Commissioner ought therefore to have proceeded with the appeal
because it was accompanied by satisfactory proof of the payment
of the tax. To hold otherwise would put a premium upon a
technicality which we do not see will advance the case either for
C the collection of the tax or for the administration of justice. The
rule, as we have stated,. indicates what is the best and easiest
method of achieving satisfactory proof. The certificate from the
Sales-tax Officer, however, is as good proof as the challan from the
Treasury arid if such certificate was produced at the admission of
the appeal, how the memorandum of appeal can be said to be defective under the ,section as it stands. In these circumstances, we
D hold that the rule is merely directory· and indicates only one of the
modes of satisfactory proof.
The distiliction made by the learned Chief Justice between
the tangible and intangible objects does not in our opinion fall for
consideration in the present case. If one holds that by 'entertainment' is meant the time of admission of the appeal, satisfactory
E proof may be furnished at the time of admission of the appeal.
We are of opinion that by the word "entertain" here is meant the.
first occasion on which the court takes up the matter for consideration. It. may, be at the admission stage or if by the rules of that
Tribunal the appeals are automatically admitted, it will be the
time of hearing ·of the appeal. But on the first occasion when
F the court takes up the matter for con~ideration, satisfactory proof
must be presented that the tax was paid within the period by limitation available for the appeal. In the present case when the
Assistant Commissioner took up the appeal for consideration, ·
satisfactory proof was available in the shape of a certificate which
even today is not denied. In our opinion the Assistant Commissioner was wrong in declining to consider the appeal in the preG sence of such uncontestable proof.
It remains to point out why we did not insist upon the assessee exhausting his other remedies under the Act before coming
to this Court. It waii made to appear ro us that there is a right of
revision and right of reference to the High Court in all such cases
and that this remedy was not resorted to by the assessee before
B making a petition for special leave in this Court. We were taken
through a number of cases in which it has been laid down by this
Court that this Court will not ordinarily grant special leave to
appeal against an order when other remedies are available and
L/JN)8 SCI No-7
514
SUl'BIPIB COUBT llllPOBTS
(1968] 1 S.O,B,
have not been exhausted. But there is no inflexible rule that this A
Court will never entertain an appeal and .numeroiis instances have
occurred in this Court where such appeals have been admitted. It
would have been futile in this case for the assessee ·to have gone
to the court of revision which was bound by the ruling of the
Allahabad High Court reported in Swastika Tannery of 'Jaimau
v. Commissioner of Sales-tax U.P. Lucknow(') and it would have B
been equally futile to have gone to the High Court on a reference.
The matter was more easily disposed of by giving special leave in
this Court and we therefore felt that this was one of those extraordinary cases in which the ends of justice would be better served,
by avoiding a circuity of action and by dealing with this matter in
this Court directly. It is for this reason that we granted special C
leave to appeal. The appeal shall therefore be allowed and the
appeal shall be remitted to the Assistant Commissioner (Judicial)
I, Sales Tax, Kanpur Range, Kanpur, for disposal in accordance
with law. There shall be no order as to costs.
:Y.P.
Appeal allowed and remitted.
(') (1963 14 S.T.Ci 518.