Appellate maintainability depends on tax admitted in the appeal, not the earlier return figures, under U.P. Sales Tax law.

For the proviso to section 9(1) of the U.P. Sales Tax Act, the tax admitted by an appellant to be due is to be assessed from the position taken in the memorandum of appeal, not mechanically from the figures in the original return. The statutory scheme distinguishes the dealer's obligation to deposit tax on return turnover from the separate condition for entertaining an appeal, which depends on payment of the tax not disputed at the appellate stage. A dealer may also challenge turnover or rate earlier shown in a return if those entries were made under mistake, so the return is not conclusive for maintainability.

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Issues: Whether, for the purpose of the proviso to section 9(1) of the U.P. Sales Tax Act, the amount of tax admitted by an appellant to be due is to be computed on the basis of the return filed by the dealer or on the basis of the turnover and tax position asserted in the memorandum of appeal.

Analysis: The statutory scheme distinguished between the dealer's obligation under section 7(1-A) and rule 41(2), which requires deposit of tax on the turnover shown in the return, and the separate requirement under the proviso to section 9(1), which makes entertainment of an appeal dependent on proof of payment of the tax admitted by the appellant to be due. The expression "admitted by the appellant to be due" was held to refer to the tax liability not disputed at the appellate stage, as disclosed by the grounds of appeal and the relief sought, and not to the figures in the return. The Court further held that a dealer may lawfully challenge in appeal even the turnover or rate earlier shown in the return if it was entered under a mistake, and that the appellate authority erred in treating the return as conclusive for determining maintainability.

Conclusion: The amount of tax admitted to be due under the proviso to section 9(1) is to be determined from the assessee's position in the appeal, not from the return filed earlier; the objection to maintainability based solely on the return was in law and the petitioner succeeded.

Ratio Decidendi: For the proviso to section 9(1), "tax admitted by the appellant to be due" means the tax undisputed at the time of filing the appeal, as disclosed by the memorandum of appeal, and not necessarily the tax computed on the basis of the return.

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