ivil Appeal No 1465 of 1990
From the Judgment and Order dated 133
1987  2721989 of the Allahabad High Court in STR Nos
52286 20289  203 of 1989
SC Manchanda and AK Srivastava for the Appellant
The Judgment of the Court was delivered by RANGANATHAN J
These three Special Leave Petitions can be disposed of together as they involve a common point
Notices of these petitions have been duly sent but there is no appearance on behalf of the respondents
After hearing the counsel for the petitioner we grant leave and also proceed to dispose of the appeals
The respondents in each of these cases was subjected to assessment under the UP Sales Tax Act
The assessment years are different for the three cases being assessment years 1981 82 1983 84 and 198283 respectively but this does not make any material difference
In each of the cases the assessee preferred an appeal to the first appellate authori ty 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 appel late authority in two of the cases dismissed the applica tion
In the third he directed the assessee to deposit 10 of the disputed tax within ten days from the date of the order
Dis satisfied with the orders of the first appellate authority 1033 each of the assessees preferred an appeal to the Tribunal
The Tribunal in all the three cases directed the assessee to pay 10 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 Vishamber Nath vs Commissioner of Sales Tax UP 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 by the asses sees at any stage of the assessment proceedings
This was followed in the other two cases with the result that the first appellate authority was held bound to entertain the appeals of the assessee without calling upon it for deposit of any portion of the tax
It is this conclusion of the learned Single Judge that is the subject matter of the present appeals
The question at issue turns upon the language of section 9 of the UP Sales Tax Act
Since this section has been amended from time to time it is necessary to extract the provisions of this section in so far as it is relevant for the present purposes as it stood from time to time The section when originally enacted read as follows Sec 9 Appeals
1 Any assessee objecting to an assessment made on him may within thirty days from the date on which he was served with notice of the assessment appeal to such authority as may be prescribed Provided that no appeal shall be entertained under this sub section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable as the case may be This provision made it obligatory on an assessee to pay up the admitted tax before his appeal against the assessment could be entertained
1034 There were amendments to the above sub section by Amend ment Act No 8 of 1954 Amendment Act No 7 of 1959 and Amendment Act No 11 of 1968
These are not material for the present purposes
Next came an amendment by Amendment Act No 3 of 1971 which took effect from 1101970
This substi tuted the following provision in place of the original sub section 1 1 Any dealer objecting to any order made by the assessing authority other than an order mentioned in section 10 A may within thirty days from the date of service of the copy of order appeal to such authority as may be prescribed Provided that no appeal against an assessment order under this Act shall be entertained unless the appel lant has furnished satisfactory proof of the payment of not less than a When return 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 by the appellant in the return filed by him or at a later stage in proceeding before the assessing authority whichever is greater
b Where no return 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 of 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 pro ceeding 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 of the assessed tax if that was higher than the admitted tax and 1035 b A discretion was conferred on the appellate authority to waive or relax the above requirement in appropriate cases
The next amendment was by UP Act No 12 of 1979 with effect from 1 11 1978
The provision as now amended stood as follows 1 Any dealer or other person aggrieved by an order made by the assessing authority other than an order mentioned in section 10 A may within thirty days from the date of serv ice of the copy of the order appeal to such authority as may be prescribed Provided that no appeal against an assessment order under this Act shall be entertained unless the appel lant has furnished satisfactory proof of the payment of not less than a Where all the returns for the assessment year have been filed 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 proceeding under this Act whichever is greater or b Where some the returns for the assessment year have not been filed or no return has been filed for such year 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 20 per cent of the amount of tax or fee assessed whichever is greater and Provided further that the appellate authority may for special and the adequate reasons to be recorded in writing
waive or relax the requirements of clause b of the preceding proviso
XXX XXX XXX This provision was in substance the same as the earlier one but a change in language was necessitated by the fact that the Act contemplated not one but several returns from an assessee in the course of an assessment year and the earlier provision which proceeded on the 1036 basis of a single return due from an assessee for the year having been filed or not filed needed to be clarified
Finally came Amendment Act No 22 of 1984 on the heels of earlier ordinances which effected an amendment in Section 9 with effect from 1221983
The new sub section reads as follows 1 Any dealer or other person aggrieved by an order made by the Assessing Authority other than an order mentioned in Section 10 A may within thirty days from the date of service of the copy of the order appeal to such authority as may be prescribed Provided that where the disputed amount of tax fee or penalty does not exceed one thousand rupees the appel lant may at his option request the Appellate Authority in writing for summary disposal of his appeal whereupon the Appellate Authority may decide the appeal accordingly
I A The manner and procedure of summary disposal of appeal shall be such as may be prescribed
I B No appeal against 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 1037 Provided that the Appellate Authority may for special and adequate reason to be recorded in writing waive or relax the requirement of the 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 subsection 1 B and for a recasting of the section the new provision has brought about no material change in the position so far as the issue before us is concerned
It may be mentioned here that the assessment years before us being 1981 82 to 1983 84 appear to be governed by the provisions of the Act as they stood before the amendment in 1983
However this does not make much of a difference since as already pointed out the effect of the provisions before and after amendment is the same
The section as it stands since 1 11 78 provides for two sets of situations
Clause a deals with a case where all the returns for the assessment year have been filed by the assessee
This means that there is a figure of turnover admitted by the assessee
Again in the course of the as sessment proceedings it is possible that he may have admit ted a different figure of turnover from that disclosed in his returns
In such a situation the provision requires the assessee to deposit the amount of the tax admitted by him either in the returns or at any subsequent stage of the proceedings before the officer whichever is greater
Clause b deals with the situation where a some though not all the returns due from the assessee have been filed and b no return at a11 has been filed
In this eventuali ty the requirement of deposit turns not merely on the admitted amount of tax as there may be no such admitted tax where no return at all has been filed but is also made to turn on the assessed tax
The provision requires the asses see to deposit the amount of tax admitted in the returns or at any stage of the proceedings under the Act or 20 of the amount of tax assessed whichever was greater
In other words the provision contemplates a comparison of i the admitted tax and ii 20 of the assessed tax
Whichever of these two figures is higher has to be deposited by the assessee before his appeal against the assessment can be entertained
There are perhaps two ways of reading clause b
One is that in a case where no return at all has been filed and no admission had at all has been made by the assessee of any figure of turnover then the first figure to be computed under clause b will be zero
If however there is an assessment made on the assessee of any tax higher than nil that 1038 will be the greater of the two figures to be computed under the clause and the assessee will have to deposit 20 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 turn over 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 con structions referred to above is the correct one
The inter pretation 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 no return has been filed but the assessee has in the course of the assessment proceedings made some admission regarding his turnover but such cases are likely to be very few
When the provision clearly contemplates a deposit of tax in cases where no return has been filed or where only some returns have been filed it would be running in the teeth of the provision to interpret it in such a manner as to exclude the majority of such cases
Secondly the High Court s interpre tation leads to a clear anomaly
For it would indeed be odd to suggest that a deposit is necessary where an assessee has filed his returns or admitted his turnover in the course of assessment proceedings but that an assessee who has not filed any return at all or made any admission at all can be allowed the privilege of an appeal even without making any deposit at all
Such an interpretation will only result in putting a premium upon recalcitrant and dishonest assessees
We do not think that this is the correct and proper way of interpreting the statutory provision
The clear intent of the clause is that an assessee should be asked to pay up the admitted tax or 20 of the assessed tax whichever is great er before an appeal could be entertained and the provision should be interpreted in such a way as to give effect to this intent
In this context it is significant that the provision does not call upon the assessee to pay up the entire amount of assessed tax
The Legislature fully appreciates that an assessment made in the absence 1039 of any return or admission may not always reflect the correct figure of tax leviable on the assessee
It could be that the assessed figure involves an estimate which takes it beyond the figure which may be ultimately determined in the case
But at the same time it cannot be said merely because an assessee has not filed any return or made any admission expressly that he necessarily disputes the en tirety of the assessed tax
It could well be that he has not done either of these things just to postpone the payment of even the tax which he may not be in a position to contest
Realising this situation the provision in question makes two relaxations
It does not make it obligatory on the assessee to deposit the entire amount of assessed tax
It restricts the deposit of 20 of the assessed tax a figure which can be treated as an ad hoc statutory 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 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 of the assessed tax and indeed even the bifurcation made in clauses a and b would be redundant
We are therefore of 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 judg ment 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 turn over in the course of the as sessment proceeding is relieved of the requirement to depos it 20 of the assessed tax under section 91 or 91 B as the case may be
What we have held however does not in any way affect the power of the appellate authority to waive or reduce the amount to be deposited depending on the circum stances of the each case under the proviso to the above sub section
We should also like to make it clear that despite our above conclusion we do not propose to interfere in any of the three appeals with the ultimate result of the High Court s decision
This is because 1040 the High Court has already permitted the appeals to be disposed of without requiring any deposits
The learned counsel for the appellants is not in a position to state whether the appeals are still pending or whether they have since been disposed of pursuant to the directions of the High Court
It would not be proper in this situation to modify the decretal position of the High Court s order
We therefore dismiss these appeals but make it clear that we do not agree with the High Court s interpretation of the statutory provisions for the reasons set out above
We make no order as to costs in the circumstances of the case
RN J
Appeals dis missed


Summary:
In 1957 the appellant let out a plot of land to Re spondent No 1 at an annual rent of Rs 170
Respondent No 1 constructed a building on the plot of land in 1968 with the consent of the appellant
After the insertion in 1976 of Section 29 A in the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972 appellant filed an application before the delegated authority under the Act for fixation of appropriate rent for the said land under Section 29 A5 of the Act
The application was dismissed by the authority on the ground that Section 29 A5 was applicable only to those cases in which there was no agreed rent and since the parties by mutual agreement have accepted the annual rent at Rs 170 there was no question of refixation of the rent
Aggrieved the appellant filed a Writ Petition in the High Court which was dismissed
The appellant has preferred this appeal by special leave against the said order of the High Court
Allowing the appeal HELD 1
The words such rent as may be mutually agreed upon between the parties in sub section 4 of Section 29 A of the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972 envisage an agreement with regard to rent entered by the landlord and tenant after the coming into force of Section 29 A An agreement prior to the com mencement of Section 29 A would not preclude determination of rent under sub section 5 of Section 29 A
Generally the words may be  are much oftener used with reference to the future than the 966 past or present
In sub section 4 of Section 29 A the words may be  are preceded by the word as  and are allowed by the words mutually agreed upon  which indicate that the words are used with reference to the future
The provisions of sub section 7 which give overriding effect to the provisions of section 29 A over an existing contract also lend support to this construction
The High Court was not correct in holding the view that there could be no enhance ment of the rent under subsection 5 of Section 29 A in view of the agreement between the appellant and the tenant that the tenant shall pay rent at the rate of Rs 170 per annum
970A D Trilok Chand vs Rent Control and Eviction Officer  Anr  approved
Brown vs Batchelor  referred to
Stroud s Judicial Dictionary 5th Edn
p 1575 reerred to
The Judgment and order of the High Court dated Febru ary 19 1990 as well as the order dated April 14 1978 passed by the Delegated Authority are set aside and the matter is remanded to the Delegated Authority for considera tion of the application submitted by the appellant or fixation of rent under Section 29 A of the Act in accordance with law
970E F