TaxTMI 
TaxTMI 
TaxTMI 
2017 (11) TMI 484
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....ne-third of the disputed amount, assessed under this Act." 3. Petitioners have also prayed that order passed by State of U.P., rejecting their appeals for non-deposit of one-third of disputed amount be quashed and appellate authority be directed to decide their appeals without enforcing requirement of pre-deposit under Section 12 (3) of Act, 1979, as amended by Amendment Act, 2009. 4. Sri Devendra Mohan Shukla, learned Counsel appearing for petitioners in both the matters, contended that appeal is first stage of adjudication and has been made an ineffective remedy by providing extremely onerous, impracticable and arbitrary condition of pre-deposit of one-third of disputed amount, ignoring the fact that Assessing Authority, if imposes wholly arbitrary and illegal liability upon an Assessee, which has no basis whatsoever, still Assessee cannot challenge such assessment order before appellate authority unless one-third of such disputed amount, which is also wholly arbitrary, illegal and confiscatory, is deposited. He submits that such a provision is patently arbitrary and places reliance on Supreme Court judgments in Aanant Mills Company Limited Vs. State of Gujrat 1975 2 SCC 175; S....
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.... tickets; or (d) has fraudulently evaded or attempted to evade, the payment of tax due in any manner whatsoever, he shall, after giving the proprietor a reasonable opportunity of being heard, assess to the best of his judgment, the amount of the tax due from the proprietor, and may also impose a penalty not exceeding [twenty thousand rupees] : Provided that where either of the aforesaid officers has commenced a proceeding under this sub-section the other of them shall have no jurisdiction to proceed subsequently in respect of the same matter and any such subsequent proceeding, if commenced, shall be of no effect and shall be dropped. [(1a) Any assessment made under this section shall be without prejudice to any prosecution for an offence under this Act.]" (Emphasis added) 10. Section 12 (2) provides a remedy of appeal to a person aggrieved by an order passed under Section 12 (1), before State Government, in such a manner, as may be prescribed. Sub-section (3) inserted by Amendment Act, 2009 w.e.f. 16.06.2009 provides a condition before entertaining an appeal and says that the person filing appeal shall pay undisputed amount of tax and at least one-third of disputed amount of ....
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....ited with Commissioner. However, there was a provision conferring power upon appellate Court, if in its opinion the deposit of amount by appellant will cause undue hardship, in its discretion, it could have dispensed with such deposit or part thereof, either unconditionally or subject to such condition as it may deem fit. Supreme Court held that condition of deposit of tax as a condition precedent to entertainment of appeal would not have effect nullifying right of appeal, particulary, when a discretion is vested in appellate Court to dispense with compliance of said requirement. Aforesaid provision only regulate right of appeal made available to a party. The object is to keep balance with regard to right of appeal to the person, who prefers appeal agaisnt Revenue. Such provision confers a right of appeal and at the same time prevents delay in payment of tax. Neither such a provision can be said to be discriminatory, violative of principle of equity under Article 14 of the Constitution nor it is otherwise beyond Legislative Competence. Provision does not have the effect of making invidious distinction or creating two classes with the object of meeting out different treatment to Ass....
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....llowing the rules of natural justice would be violative of any right-constitutional or statutory, without any right of appeal, as such, if the statute gives a right to appeal upon certain conditions, it is upon fulfillment of those condition that the right becomes vested and exercisable to the appellant." 16. There is a three Judges' judgment in Shyam Kishore and others Vs. Municipal Corporation of Delhi and another 1993 (1) SCC 22, wherein vires of Section 170 (b) of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "DMC Act, 1957") was challenged on the ground that condition of pre-deposit for availing right of appeal is ultra vires of the condition. The Court examined the submission by referring to a distinction between right of suit and right of appeal. It referred to an earlier decision in Ganga Bai Vs. Vijay Kumar and others 1974 (2) SCC 393 and observed: " Right of suit is an inherent right in every person to bring a suit of a civil nature, but the right of appeal inhers in no one and therefore an appeal for its maintainability must have clear authority of law." 17. It also referred to and relied on its earlier decision in Anant Mills Company Limited V....