TaxTMI 
TaxTMI 
2000 (9) TMI 946
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....able" used in the section is of wider amplitude being not restricted to only financial position of the assessee. 3.. In order to determine the rival contention it is necessary to have a resume of the facts leading to the filing of the present appeal. The respondent, M/s. Maruti Udyog Limited, a public limited company (hereinafter referred to as "the company"), having its factory at Gurgaon in the State of Haryana is engaged in the business of manufacture and sale of various types of cars, namely, Maruti 800, Omni and Esteem, etc., along with their spare parts. The company is a registered dealer under the Haryana General Sales Tax Act, 1973 (hereinafter referred to as "the Act") and the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act") with the Excise and Taxation Officer, Gurgaon. For the assessment year 1986-87, the company was assessed to tax by the Excise and Taxation Officer, Gurgaon, vide his orders dated November 20, 1990, under the Act and the Central Act. On March 16, 1992, the Deputy Excise and Taxation Commissioner (I), Gurgaon, served a notice on the company proposing to suo motu revise the assessment orders of the Excise and Taxation Officer, ....
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....speaking order after hearing the company in accordance with law. The Tribunal vide its order dated 20th February, 1998, rejected the application of the company relying upon a Full Bench judgment of the Punjab and Haryana High Court in Emerald International Ltd. v. State of Punjab [2001] 122 STC 382; STI 1997 P&H 113, and directed the company to deposit the amount within a period of one month. Not satisfied, the company again filed Writ Petition No. 6932 of 1998 in the High Court which was allowed on December 4, 1998, vide the judgment impugned in this appeal. 6.. Before appreciating the legal position, it is necessary to refer to the averment made by the company in its application seeking stay of recovery of demand and entertainment of appeal without prior payment of tax and interest. The only ground taken in that application was: "That the petitioner has not collected any additional tax from the customers and is unable to deposit the amount of additional demand created by patently illegal orders." 7.. Section 39 of the Act confers a right of appeal upon the assessee against any original order including an order under section 40 passed under the Act and the Rules made thereunder....
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....- section (5) of section 39 are complied with, the appeal is born for being disposed of on merits after hearing both the sides. 8.. Interpreting the word "entertain" in relation to the filing of an appeal, as is also the mandate of sub-section (5) of section 39 of the Act this Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur [1968] 21 STC 154; AIR 1968 SC 438 observed: "To begin with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied 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 does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available? The dictionary meaning of the word 'entertain' was brought to our notice by the parties, and both sides agreed that it means either 'to deal with or admit to consideration'. We are also of the same opinion. The question, therefore, is at what stage can the appeal be said to....
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....lent of the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions 'appeal' and 'memorandum of appeal' are used to denote two distinct things. 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 appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, 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." 9.. The object of sub-section (5) of section 39 of the Act is to ensure the deposit of amount claimed from an assessee in case of an appeal filed against the tax demanded. However, power is given to the Appellate Tribunal to relieve him from the rigor of above restriction under the circumstances spelt out in the proviso of the aforesaid section. Sub....
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.... Advocate, that the inability mentioned in the proviso refers to the paying capacity and financial position of the company and its scope cannot be widened to the extent as suggested by Mr. Nariman. The word "pay" with its grammatical variation and cognate expressions, when used with reference to the tax amount, means "deliver and render" the amount, it indicates the discharge of an obligation rather than an investment of money. "To pay" is a generic term and the rest of the proviso refers to the modes of payment. It may mean the payment of the amount of tax assessed. The dictionary meaning of the "payment" is the performance of an obligation for the delivery of money. In legal contemplation "payment" is the discharge of an obligation by the delivery of money or its equivalent. The word "unable" used in the proviso has been defined to mean "not having sufficient strength, power and means". In relation to money, it means insufficiency of funds. It follows, therefore, that the inability to pay the amount is referable to the paying capacity of the person concerned and not his legal or actual liability to pay the amount demanded. It has to be kept in mind that the payment made under th....