Sri Govindaram Saraf Vs. State of Orissa - Court Judgment

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Subject	Sales Tax
Court	Orissa High Court
Decided On	Apr-02-1963
Case Number	O.J.C. No. 145 of 1962
Judge	R.L. Narasimham, C.J. and ;G.K. Misra, J.
Reported in	[1963]14STC622(Orissa)
Appellant	Sri Govindaram Saraf
Respondent	State of Orissa
Appellant Advocate	R. Mohanty, ;M.L. Jhunjhunwala and ;R.K. Kar, Advs.
Respondent Advocate	R.K. Ghosh, Adv.
Disposition	Application allowed

Excerpt:

.....of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........of india for issuing a writ of cerlioran to quash the order dated 27th february, 1962, of the sales tax tribunal in appeal no. 822(p)/61-62. the facts relevant for the decision of this case are that the learned assistant commissioner of sales tax, sambalpur, set aside the order of assessment of the sales tax officer under section 23(2)(b) of the orissa sales tax act, 1947 (hereinafter to be called the act) and remanded the case for fresh assessment. against the remand order the petitioner filed an appeal before the sales tax tribunal under section 23(3)(a) of the act. the petitioner filed the appeal on payment of a fee of one rupee only. the tribunal called upon the petitioner to pay court-fee of rs. 45.90 np. amounting to five percentum of the amount in dispute. against this order the writ application has been filed.2. petitioner's contention is that under rule 85 of the orissa sales tax rules, 1947 (hereinafter called the rules), he is liable to pay the minimum of one rupee. this contention was rejected by the learned. tribunal. chapter xii of the rules deals with payment of fees. rule 85 is as follows :-'85. subject to the provisions of rule 86 the following fees shall be.....

Judgment:

G.K. Misra, J.

1. This is an application under Articles 226 and 227 of the Constitution of India for issuing a writ of cerlioran to quash the order dated 27th February, 1962, of the Sales Tax Tribunal in Appeal No. 822(P)/61-62. The facts relevant for the decision of this case are that the learned Assistant Commissioner of Sales Tax, Sambalpur, set aside the order of assessment of the Sales Tax Officer under Section 23(2)(b) of the Orissa Sales Tax Act, 1947 (hereinafter to be called the Act) and remanded the case for fresh assessment. Against the remand order the petitioner filed an appeal before the Sales Tax Tribunal under Section 23(3)(a) of the Act. The petitioner filed the appeal on payment of a fee of one rupee only. The Tribunal called upon the petitioner to pay court-fee of Rs. 45.90 nP. amounting to five percentum of the amount in dispute. Against this order the writ application has been filed.

2. Petitioner's contention is that under Rule 85 of the Orissa Sales Tax Rules, 1947 (hereinafter called the rules), he is liable to pay the minimum of one rupee. This contention was rejected by the learned. Tribunal. Chapter XII of the Rules deals with payment of fees. Rule 85 is as follows :-

'85. Subject to the provisions of Rule 86 the following fees shall be payable:- * * *

(iii) On a memorandum of Five percentum of the amountappeal under Sub-section (3) in dispute calculated to theof Section 23 to the Tribunal. nearest rupee subject to aminimum of one rupee and amaximum of one hundredrupees.'An Explanation has been appended to this rule which may be quoted below :-

Explanation :-In this rule 'the amount in dispute' means the difference between the amount of tax or penalty, if any, or both demanded and the amount admitted by the dealer to be payable.under Rule 88(2)(c)(ii) fees payable under Clause (iii) of Rule 85 shall either be paid in cash or by affixture of court-fee stamps. It is some- what inaccurate to say that court-fee is paid on the memorandum of appeal. The crucial words in Rule 85(ii) are 'the amount in dispute'. Ordinarily an Explanation is not a definition section. But in this rule, the Explanation defines the words 'the amount in dispute' as meaning the difference between the amount of tax or penalty, if any, or both demanded and the amount admitted by the dealer to be payable. The amount of tax or penalty demanded has a well-known connotation. There can be no demand of tax or penalty until an assessment is made. There is no assessment quantifying the liability after the original order of assessment was set aside by the Assistant Commissioner, and consequently there can be no demand of the tax until further assessment, if any, is made in pursuance of the remand order. It is well-known that the liability is already fixed and does not depend upon the assess- ment. The assessment merely particularizes the exact sum which a person is liable to pay. The petitioner (the dealer) does not admit that any amount is payable by him. There exists no difference between the amount demanded and the amount admitted. The difference is indeter- minable at the stage when the appeal was filed before the Tribunal, and as no amount in dispute can be determined, the question of the peti- tioner paying five per cent, fee thereof does not arise and the fee payable is only the minimum of one rupee.

3. It is now well-settled that a writ of certiorari can be issued not only in cases of illegal exercise of jurisdiction but also to correct errors of law apparent on the face of the record. The error of law committed by the learned Tribunal is apparent on the face of the record. He completely overlooked the Explanation as embodying the meaning of the words 'amount in dispute'.

4. The order of the learned Tribunal must therefore be quashed. The petitioner is entitled to a refund of the amount of fees, if any, paid in excess of the required amount in accordance with law. In the result, the application is allowed, the order dated 27th February, 1962, of the learned Tribunal is quashed and a writ of certiorari be issued as directed.

R.L. Narasimham, C.J.

5. I agree.