Case: Lakshmi Rattan Engineering Works Ltd Vs. Asstt. Commr. Sales Tax, Kanpur &amp; Anr

2. The facts of the case are as follows :The appellant had declared his turnover for the year 1964-65 at Rs. 370,941-7 p. on which the admitted tax under the Act came to Rs. 11,135-58 p. 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 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 sec. 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.

Reasoning:
This in main represents the essence of the controversy between thedictionary 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 samethe 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 example, under Order 41, Rule 1 of theCode of Civil Procedure it is stated that a memorandum shall not be filed or presented unless it is accompanied etc., in S. 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 itour 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 S. 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 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 0. 41 of theCode of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things.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. There 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.12. 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 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 satisfactorythe 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.14. 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 occur 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 as bound by the ruling of the Allahabad High Court reported in 1963-14 STC 518  (All) (Cit. Supra) 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 extra-ordinary 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.