Supreme Court On Entertaining An Appeal

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(1968) 1 SCR 505 : AIR 1968 SC 488 : (1968) 2 SCJ 1 : (1968) 1 SCWR 433 :
21 STC 154
In the Supreme Court of India

(BEFORE M. HIDAYATULLAH, V. BHARGAVA AND C.A. VAIDIALINGAM, JJ.)
LAKSHMI RATTAN ENGINEERING WORKS LTD. … Appellant;

Versus
ASSTT. COMMR. SALES TAX, KANPUR AND ANOTHER …
Respondents.
Civil Appeal No. 1283 of 1967* , decided on September 12, 1967
Advocates who appeared in this case :
J.P. Goyal and Sobhag Mal Jain, for the appellant;
O.P. Rana, for the respondents.
The Judgment of the Court was delivered by
M. HIDAYATULLAH, J.— This is an appeal by special leave against an order dated 2/3
April, 1967, of the Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range,
Kanpur by which the Assistant Commissioner rejected as defective the memorandum
of appeal filed by the present appellant against the assessment order passed by the
Sales Tax Officer (S-1) Kanpur. The defect, according to the Assistant Commissioner,
was that the memorandum of appeal (which had been filed well within time) was not
accompanied by the challan showing the deposit of admitted tax under Section 9 of
the Uttar Pradesh Sales Tax Act, 1948. The appellant did not file an application for
revision and did not also invite a reference to the High Court of Allahabad but came
direct to this Court by special leave which was granted by us on August 23, 1967. At
the first hearing of the petition, the State of Uttar Pradesh represented by Mr O.P.
Rana objected to the grant of special leave inasmuch as the other provisions under
which remedy could be obtained under the Sales Tax Act had been bypassed. At that
time, we overruled the objection and in the course of this judgment, we shall briefly
indicate the reasons which had then prevailed with us.
2. The facts of the case are as follows: The appellant had declared his turnover for
the year 1964-65 at Rs 3,70,941.7p. on which the admitted tax under the Act came to
Rs 11,135,58p. The Sales Tax Authorities, however, assessed his turnover at Rs 30
lakhs on which tax was calculated at Rs 90,000. The appellant appealed to the
Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur. His appeal was
filed on May 16, 1966, the order of assessment and the demand notice having been
served on him on April 16, 1966. The appeal was therefore filed within time. Section 9
of the Act provides that no appeal against an assessment shall be entertained unless it
is accompanied by satisfactory proof of the payment of the amount of tax admitted by
the appellant to be due or of such instalments thereof as may have become payable.
As is stated earlier, the admitted tax came to Rs 11,135.58p. The appellant was
required under this provision of law to give satisfactory proof, at the time of the
entertainment of the appeal, that this tax was duly paid. It appears that the appellant
had paid a greater portion of the tax even before the assessment order had been
made, and a balance of Rs 99.99p. was due from him from the amount of admitted
tax. This amount was deposited on April 26, 1966 before the appeal was filed by him.
He did not however present any proof of such deposit, because there is a dispute in
the case whether the assessee had shown proof of it to the munsarim or not. As the
finding is that he had not shown it we shall proceed on the assumption that the
assessee had not furnished proof at the time of the filing of the appeal that the
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balance of tax had been paid. It is on this premise that the present appeal has
proceeded before us. On August 16, 1966, the assessee addressed a letter to the Sales
Tax Officer and asked for a certificate of payment of tax and this certificate having
been furnished he filed it on January 24, 1967 before the Assistant Commissioner. He
also, as a matter of abundant caution, filed an application for condonation of delay
under Section 9(6) of the Act read with Section 5 of the Indian Limitation Act. The
order against which the present appeal has been brought before us was made on 2/3
April, 1967 and the appeal of the assessee was rejected, because in the opinion of the
Assistant Commissioner Section 9 of the Act read with Rule 66(2) had not been
complied with since no proof had been given along with the memorandum of appeal
that the tax had been paid. Simultaneously, the application for condonation of delay
was also dismissed. Against this order, the assessee has filed the present appeal.
3. The short question in this case is whether having made the deposit even before
the appeal was filed and well within the period of limitation, the assessee could be
deprived of his right of appeal under Section 9 of the Act. Alternatively, it is to be
considered whether the proof of the payment of the admitted tax had to accompany
the memorandum of appeal as required by Rule 66(2) and on failure to furnish such
proof, the appeal itself became incompetent. In support of his order the Assistant
Commissioner relied on a decision of the Allahabad High Court reported in Swastika
Tannery of Jaimau v. Commissioner of Sales Tax, U.P. Lucknow1 in which the learned
Chief Justice of that Court and another learned Judge have laid down that the proof of
payment must be as required by the rules and, therefore, the memorandum of appeal
ought to be accompanied by the challan showing payment of tax before the appeal can
be said to be competent. We shall refer to that ruling presently.
4. In this appeal, learned counsel for the assessee has relied upon a number of
authorities in which the interpretation runs counter to the decision of the learned Chief
Justice just adverted to and had contended that Section 9 of the Act does not create
the bar which the ruling and the Assistant Commissioner's reliance on that ruling has
created in the way of the appeal. His contention is that if satisfactory proof is given
before the appeal is heard or at any rate before it is admitted, the requirement of law
under Section 9 is satisfied and that it is not always incumbent to produce a challan
with the memorandum of appeal, Rule 66(2) notwithstanding. It is this point which
has given rise to the great controversy before us and the matter was argued at great
length both at the time of grant of special leave and today.
5. To consider the matter, we may begin by quoting Section 9 of the Act. Section 9
which gives the power of appeal provides as follows:
“(1) Any dealer objecting to an order allowing or refusing an application for
exemption certificate under clause (b) of sub-section (1) of Section 4 or to an order
refusing an application under Section 30 or to an order imposing a penalty under
Section 15-A or to an assessment made under Section 7, 7-A, 7-B, 18 or 21, may
within 30 days from the date of service of the copy of the order or notice of
assessment, as the case may be, appeal to such authority as may be prescribed;
Provided that no appeal against an assessment shall be entertained unless it is
accompanied by satisfactory proof of the payment of the amount of tax admitted by
the appellant to be due, or of such instalments thereof as may have become
payable:
* * *”
Under Section 24 of the Act power has been conferred upon the State Government to
make rules to carry out the purposes of the Act and in particular, to provide for all
matters expressly required or allowed by this Act to be prescribed. Under sub-section
(4) of that section, it is provided that all rules made under the section shall be
published in the Gazette and upon such publication, shall have effect immediately as if
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enacted in the Act and under the 5th sub-section, it is further provided that all rules
made under the Act shall be laid for fourteen days before the legislature as soon as
possible after they are made and shall be subject to such modifications as the
legislature may make during the session in which they are so laid. In exercise of this
power, the State Government has framed the U.P. Sales Tax Rules, 1948. Rules 66 and
67 of these Rules bear, among others, upon appeals. Sub-rule 1 of Rule 66 provides
for the content of the appeal by stating what the memorandum of appeal shall specify
in relation to the name and address of the appellant etc. We are not concerned with it.
Sub-rule 2 then states that “the memorandum of appeal shall be accompanied by … a
challan showing deposit in the Treasury of the tax admitted by the appellant to be due
or of such instalments thereof as might have become payable”. Rule 67 lays down how
the appeals have to be presented. Sub-rule 1 provides that the memorandum of
appeal shall be presented by the appellant or his lawyer or duly authorised agent to
the Assistant Commissioner (Judicial) or may be sent by registered post addressed to
the Assistant Commissioner, (Judicial). Sub-rule 2 provides that if the memorandum
of appeal is in order, the Assistant Commissioner, (Judicial) shall admit it and on
admission, the Reader of the Assistant Commissioner (Judicial) shall endorse thereon
the date of its presentation and shall register it in a book to be known as Register of
Appeals. The third sub-rule says that if the memorandum of appeal is not in order, it
may be rejected or returned after the necessary endorsement on its back about the
presentation and return to the applicant for correction and representation within the
time to be fixed by the Assistant Commissioner (Judicial) or be amended then and
there. Lastly sub-rule 4 provides that on admission of an appeal the Assistant
Commissioner (Judicial) shall fix a date for hearing of the appeal and may send for the
record, if necessary.
6. The contention of counsel for the assessee is that he had fully complied with the
requirements of Section 9 although not strictly as laid down in Rule 66 which he
characterised as directory. The contention on the other side is that the rule lays down
the only manner of compliance with the provisions of the section and in support
counsel for the State refers to the provisions of Section 24(4) and (5) in which it is
stated that the rules on being framed become part of the Statute. From this, counsel
for the State infers that there is no other mode of compliance except the one stated in
the rules and as in this case that mode of compliance was not followed, the appeal is
rightly considered to be incompetent and properly rejected. This in main represents
the essence of the controversy between the parties.
7. 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 be
entertained for the purpose of the application of the proviso? Is it “entertained” when
it is filed or is it “entertained” when it is admitted and the date is fixed for hearing or
is it finally “entertained” when it is heard and disposed of? Numerous cases exist in
the law reports in which the word “entertained” or similar cognate expressions have
been interpreted by the courts. Some of them from the Allahabad High Court itself
have been brought to our notice and we shall deal with them in due course. For the
present we must say that if the legislature intended that the word “file” or “receive”
was to be used, there was no difficulty in using those words. In some of the statutes
which were brought to our notice such expressions have in fact been used. For
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example, under Order 41 Rule 1 of the Code of Civil Procedure it is stated that a
memorandum shall not be filed or presented unless it is accompanied etc.; in Section
17 of the Small Causes Courts Act, the expression is “at the time of presenting the
application”. In section 6 of the Court Fees Act, the words are “file” or “shall be
received”. It would appear from this that the legislature was not at a loss for words if
it had wanted to express itself in such forceful manner as is now suggested by counsel
for the State. It has used the word “entertain” and it must be accepted that it has
used it advisedly. This word has come in for examination in some of the cases of the
Allahabad High Court and we shall now refer to them.
8. In Kundan Lal v. Jagannath Sharma2 the Court was concerned with Order 21 Rule
90 of the Code of Civil Procedure which had been amended by the High Court by
changing the provisions of the original Code. The changed rule is as follows:
“Provided that no application to set aside the sale shall be entertained:
(a) upon any ground which should have been taken by the applicant on or
before the date on which the sale proclamation was drawn up:
(b) Unless the applicant deposits such amount not exceeding 12 ½% of the
sum realised by the sale or furnishes such security as the court may in its
discretion fix, except when for reasons to be recorded it dispenses with the
requirements of this clause….”
9. The word “entertain” is explained by a Divisional Bench of the Allahabad High
Court as denoting the point of time at which an application to set aside the sale is
heard by the court. The expression “entertain”, it is stated, does not mean the same
thing as the filing of the application or admission of the application by the court. A
similar view was again taken in Dhoom Chand Jain v. Chamanlal Gupta3 in which the
learned Chief Justice Desai and Mr Justice Dwivedi gave the same meaning to the
expression “entertain”. It is observed by Dwivedi, J., that the word “entertain” in its
application bears the meaning “admitting to consideration”, and therefore when the
court cannot refuse to take an application which is backed by deposit or security, it
cannot refuse judicially to consider it. In a single bench decision of the same court
reported in Bawan Ram v. Kunj Beharilal4 one of us (Bhargava, J.) had to consider the
same rule. There the deposit had not been made within the period of limitation and
the question had arisen whether the court could entertain the application or not. It
was decided that the application could not be entertained because proviso (b)
debarred the court from entertaining an objection unless the requirement of depositing
the amount or furnishing security was complied with within the time prescribed. In
that case the word “entertain” is not interpreted but it is held that the Court cannot
proceed to consider the application in the absence of deposit made within the time
allowed by law. This case turned on the fact that the deposit was made out of time. In
yet another case of the Allahabad High Court reported in Haji Rahim Bux & Sons v.
Firm Samiullah & Sons5 a Division Bench consisting of Chief Justice Desai and Mr
Justice S.D. Singh interpreted the words of Order 21, Rule 90, by saying that the word
“entertain” meant not “receive” or “accept” but “proceed to consider on merits” or
“adjudicate upon”.
9. In our opinion these cases have taken a correct view of the word “entertain”
which according to dictionary also means “admit to consideration”. It would therefore
appear that the direction to the court in the proviso to Section 9 is that the court shall
not proceed to admit to consideration an appeal which is not accompanied by
satisfactory proof of the payment of the admitted tax. This will be when the case is
taken up by the court for the first time. In the decision on which the Assistant
Commissioner relied, the learned Chief Justice (Desai, C.J.) holds that the words
“accompanied by” showed that something tangible had to accompany the
memorandum of appeal. If the memorandum of appeal had to be accompanied by
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satisfactory proof, it had to be in the shape of something tangible, because no

intangible thing can accompany a document like the memorandum of appeal. In our
opinion, making “an appeal” the equivalent 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 decisions
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.
10. Now the complicating factor is the existence of the rule, and here, the
divergence of submission arises on whether the rules can be regarded as mandatory or
merely directory. It is quite obvious that the section as it stands only requires that at
the time of the consideration of the appeal. There should be satisfactory proof that the
admitted tax has been deposited. It only says that no appeal shall be entertained
unless accompanied by satisfactory proof of the payment of the tax. This satisfactory
proof may take any form; in fact in the present case satisfactory proof was tendered in
the shape of a certificate from the Sales Tax Officer that the admitted tax had been
deposited and well within time. Under Section 9 and its proviso as they stand, it is
quite obvious that “entertainment” means the point of time when the appeal is being
considered. Txhere was thus satisfactory proof in the present case. No doubt, proof
was not tendered following the method required by the rules but the question is
whether the rules can make the section narrower by prescribing a particular mode. The
section is general; it provides that the court should accept satisfactory proof. The rule
requires that the memorandum of appeal shall be accompanied by the challan showing
payment of tax. The rule lays down one uncontestable mode of proof which the Court
will always accept but it does not exclude the operation of the proviso when equally
satisfactory proof is made available to the officer hearing the appeal and it is proved to
his satisfaction that the payment of the tax has been duly made and in time. In this
sense, the rule can be regarded as directory since it lays down one of those modes
which will be unquestioned for its validity. The other modes of proof are not
necessarily shut out.
11. It is to be remembered that all rules of procedure are intended to advance
justice and not to defeat it. Here the right of appeal has been made subservient to the
payment of the admitted tax. If the admitted tax is paid and there is proof available
that it has been so paid, there exists no reason to create a second impediment in the
way of the appeal. No doubt, rule makes it easy for the assessee to bring satisfactory
proof in an uncontestable manner, but the provision of the rule is not to the exclusion
of other satisfactory modes of proof. Suppose for instance that the challan was lost
and the time for the filing of the appeal was expiring, could or could not the person
concerned say that he had the certificate but had lost it and that he would produce a
copy of the challan from the Treasury or obtain a certificate from the Treasury Officer.
Could he not obtain from the bank the discharged cheque by which the amount of tax
was deposited by him and produce it as the discharged counterfoil of payment. All
these modes of proof will be equally irrefutable. In the present case the assessee had
in his petition of appeal stated that the amount of tax had been paid and had fortified
the statement by an affidavit. Before the hearing he produced a certificate from the
Sales Tax Officer that the tax had been paid. The Assistant Commissioner ought
therefore to have proceeded with the appeal because it was accompanied by
satisfactory proof of the payment of the tax. To hold otherwise would put a premium
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upon a technicality which we do not see will advance the case either for the collection
of the tax or for the administration of justice. The rule, as we have stated, indicates
what is the best and easiest method of achieving satisfactory proof. The certificate
from the Sales Tax Officer, however, is as good proof as the challan from the Treasury
and if such certificate was produced at the admission of the appeal, how the
memorandum of appeal can be said to be defective under the section as it stands. In
these circumstances, we hold that the rule is merely directory and indicates only one
of the modes of satisfactory proof.
12. The distinction made by the learned Chief Justice between the tangible and
intangible objects does not in our opinion fall for consideration in the present case. If
one holds that by “entertainment” is meant the time of admission of the appeal,
satisfactory proof may be furnished at the time of admission of the appeal. We are of
opinion that by the word “entertain” here is meant the first occasion on which the
court takes up the matter for consideration. It may be at the admission stage or if by
the rules of that Tribunal the appeals are automatically admitted, it will be the time of
hearing of the appeal. But on the first occasion when the court takes up the matter for
consideration, satisfactory proof must be presented that the tax was paid within the
period by limitation available for the appeal. In the present case when the Assistant
Commissioner took up the appeal for consideration, satisfactory proof was available in
the shape of a certificate which even today is not denied. In our opinion the Assistant
Commissioner was wrong in declining to consider the appeal in the presence of such
uncontestable proof.
13. It remains to point out why we did not insist upon the assessee exhausting his
other remedies under the Act before coming to this Court. It was made to appear to us
that there is a right of revision and right of reference to the High Court in all such
cases and that this remedy was not resorted to by the assessee before making a
petition for special leave in this Court. We were taken through a number of cases in
which it has been laid down by this Court that this Court will not ordinarily grant
special leave to appeal against an order when other remedies are available and have
not been exhausted. But there is no inflexible rule that this Court will never entertain
an appeal and numerous instances have occurred in this Court where such appeals
have been admitted. It would have been futile in this case for the assessee to have
gone to the court of revision which was bound by the ruling of the Allahabad High
Court reported in Swastika Tannery of Jaimau v. Commissioner of Sales Tax U.P.
Lucknow6 and it would have been equally futile to have gone to the High Court on a
reference. The matter was more easily disposed of by giving special leave in this Court
and we therefore felt that this was one of those extraordinary cases in which the ends
of justice would be better served, by avoiding a circuity of action and by dealing with
this matter in this Court directly. It is for this reason that we granted special leave to
appeal. The appeal shall therefore be allowed and the appeal shall be remitted to the
Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur, for disposal in
accordance with law. There shall be no order as to costs.
———
* Appeal by Special Leave from the Order dated April 2/3, 1967, of the Court of Assistant Commissioner (Judicial)
I, Sales Tax, Kanpur Range, in Appeal No. DF 78 of 1966.
1 (1963) 14 STC 518
2 AIR 1962 All 547
3 AIR 1962 All 543
4 AIR 1961 All 42
5 AIR 1963 All 326

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6 (1963) 14 STC 518
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SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.

Page 1 Sunday, October 17, 2021

In the Supreme Court of India

LAKSHMI RATTAN ENGINEERING WORKS LTD. … Appellant;

satisfactory proof, it had to be in the shape of something tangible, because no

5 AIR 1963 All 326

6 (1963) 14 STC 518

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