TaxTMI 
TaxTMI 
1990 (3) TMI 310
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....erred an appeal to the first appellate authority and, along with the appeal, moved an application praying for the waiver of any deposit of tax which was necessary before the appeal could be entertained. But the first appellate authority, in two of the cases, dismissed the application. In the third, he directed the assessee to deposit 10 per cent of the disputed tax within ten days from the date of the order. Dissatisfied with the orders of the first appellate authority, each of the assessees preferred an appeal to the Tribunal. The Tribunal, in all the three cases, directed the assessee to pay 10 per cent of the assessed tax before the appeal could be entertained. Each of the assessees preferred a revision petition before the High Court. The learned single judge who heard the revision petition in the main appeal preferred by Atma Ram Misra distinguished the earlier judgment of the court in Vishwambhar Nath v. Commissioner of Sales Tax, U.P. [1980] 45 STC 349; 1979 UPTC 1276, and held that the condition requiring deposit of tax was not applicable in the instant case as no returns at all had been filed by the assessee for the relevant assessment year and no turnover stood admitted b....
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....rn is filed,-the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted at any stage in proceedings before the assessing authority, or 20 per cent of the amount of tax or fee assessed whichever is greater: Provided further that the appellate authority may, for special and adequate reasons to be recorded in writing, waive or relax the requirements of clause (b) of the preceding proviso." This provision, it will be observed, effected two important changes: (a) The assessee had to deposit the highest amount of tax due on his admitted turnover. However, if he had filed no return and had been assessed to tax, he had to deposit 20 per cent of the assessed tax, if that was higher than the admitted tax; and (b) A discretion was conferred on the appellate authority to waive or relax the above requirement in appropriate cases. The next amendment was by U. P. Act No. 12 of 1979, with effect from November 1, 1978. The provision, as now amended, stood as follows: "(1) Any dealer or any other person aggrieved by any order made by the assessing authority, other than an order mentioned in section 10-A may, within thirty days from the date ....
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....st an assessment order under this Act shall be entertained unless the appellant has furnished satisfactory proof of the payment of not less than- (a) the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns filed by him or at any stage in any proceedings under this Act, whichever is greater, where all the returns for the assessment year have been filed, or (b) the amount of tax or fee due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act, or twenty per cent of the amount of tax or fee assessed, whichever is greater, where some of the returns for the assessment year have not been filed or no return has been filed for such year: Provided that the appellate authority may, for special and adequate reasons to be recorded in writing, waive or relax the requirement of clause (b) of this sub-section in so far as it relates to deposit of twenty per cent of the amount of tax or fee assessed." Except for shifting the contents of the relevant provision to new sub-sectio....
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.... under the clause and the assessee will have to deposit 20 per cent of the assessed tax. The other way of interpreting the sub-section, which appears to have commended itself to the High Court, is to say that clause (b) will be attracted only if two figures are available for comparison: (1) a figure of turnover admitted in a return or in subsequent proceedings, and (2) a figure of assessed tax. If the assessee has filed no return at all and if he has made no admission regarding his turnover at any stage of the proceedings, then figure (1) above cannot be computed. Hence it is not possible to make a comparison between the two figures indicated above and therefore the provisions of deposit contained in clause (b) will not at all apply. We think it is manifest that the first of the two constructions referred to above is the correct one. The interpretation accepted by the High Court is, in our view, erroneous for two reasons. In the first place, it does not give full effect to the last few words of clause (b) which clearly cover a case where no return at all has been filed for the assessment year in question. True, even on this interpretation, the provision will govern a case where ....
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....ry quantification, on an average, of the tax demand in such cases on which there could be no quarrel). Added to this, it empowers the appellate authority to waive or relax the requirements of clause (b). This is because the appellate authority will be in a position to, prima facie, Judge the extent to which, in the circumstances of a particular case, there is a real dispute in the appeal and to insist upon the deposit of such percentage of the assessed tax (not exceeding 20 per cent) as it may consider appropriate. If the intention of the legislature were only that the deposit should be confined only to the admitted tax in all cases, the second part of clause (b) referring to deposit of 20 per cent of the assessed tax and, indeed, even the bifurcation made in clauses (a) and (b) would be redundant. We are, therefore, of the opinion that the deposit contemplated under clause (b) also covers cases where no returns have been filed and no admission of any turnover has come from the assessee. We would like to make it clear that we modify the judgment of the High Court only in so far as it directs that an assessee who has not made any return at all and has not admitted any figure of tur....