TaxTMI 
TaxTMI 
TaxTMI 
1998 (4) TMI 575
X X X X Extracts X X X X
X X X X Extracts X X X X
....reshold, has raised preliminary objection about the maintainability of this application on the ground of alternative remedy of appeal. In reply, the learned counsel for the petitioner has made two submissions, namely, (i) the impugned assessment orders are arbitrary having shown inflated sales without any ground reality and without giving a reasonable opportunity of being heard to the petitioner and (ii) in view of Section 45(3) of the Act, the petitioner cannot file an appeal because it cannot be admitted, unless 20 per cent of the tax assessed is deposited by it. 3. Against assessment order, an appeal lies under Section 45 of the Act. The appeal being efficacious and adequate remedy, we cannot entertain this application merely because 20 per cent of the tax assessed is to be deposited by the petitioner. The question as to whether the impugned assessment orders contain inflated sales is a question which can more appropriately be decided in appeal on the basis of the materials produced by the parties. If the petitioner is dissatisfied with the assessment orders, it has to challenge the same before the appellate authority. It is not open to it to by-pass the statutory remedy. In As....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Tax Act but power has been given to the appellate authority to dispense with or modify the said requirement of deposit in suitable cases, but in this State the appellate authority has not been given any such power and the dealer has to deposit 20 per cent of the tax assessed. The impugned provision is, therefore, discriminatory in nature and violates Article 14 of the Constitution. The learned SC I has disputed the above submissions. 7. Section 45 provides for an appeal against an order of assessment or penalty or both passed by the prescribed authority. Sub-section (3) of the said section, which is reproduced below, has laid down that no appeal shall be admitted unless the dealer objecting to the order of assessment has paid 20 per cent of the tax assessed or full amount of admitted tax whichever is greater : "45(3). No appeal under Sub-section (1) or (2) shall be admitted unless the dealer objecting to an order of assessment has paid twenty per centum of the tax assessed or full amount of admitted tax whichever is greater." 8. Recently, a division Bench of this Court in AIR 1999 SC 74 Tinplate Company of India Ltd. v. State of Bihar 1997 (1) All PLR 521, while dea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....such officer makes illegal assessment and raises exorbitantly high demand, on the basis of such assessment, it will cause serious prejudice to the dealer and in many cases even ruin him because he has to deposit 50 per cent of the tax assessed. It was, therefore, held that the power to levy tax or impose penalty conferred on the assessing officer without effective corrective machinery by way of appeal or revision is unreasonable, oppressive and uncontrolled. The relevant provision of the Tripura Sales Tax Act requiring payment of 50 per cent of tax assessed before admission of the appeal was accordingly declared as ultra vires being violative of Article 14 of the Constitution. 10. The M.P. High Court in Lachhmandas v. State of M.P. [1995] 98 STC 274 has dissented from the aforesaid decision of the Gauhati High Court and has upheld the Madhya Pradesh General Sales Tax Act under which a part of assessed tax was required to be deposited as a condition precedent for filing an appeal. The relevant extract from the said decision is reproduced below : "14. The right of appeal is a statutory right. It is open to the Legislature to provide for a remedy of appeal and also impose cond....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... appealed against in case the appeal is ultimately dismissed. It is open to the Legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern no contravention of Article 14 in it......". 12. The Collector of Customs and Excise, Cochin v. AS. Bava 1973 ECR 18 (SC), on which reliance has been placed by the learned counsel for the petitioner, is not a case dealing with the question in issue in the present case. In that case, Section 35 of the Central Excises and Salt Act, 1944 conferred unfettered right of appeal on a dealer without precondition of deposit of the assessed duty but by virtue of a notification issued by the Government applying the provision of the Customs Act, such a condition was imposed. The court struck down the notification holding that by notification the right of appeal under Section 35 of the Central Excises and Salt Act, 1944 has been whittled down. 13. So far as Se....