AI Structured Summary
Not yet generated for this judgment
Judgment
HIGH COURT OF JAMMU AND KASHMIR
With the consent of both the learned counsel for the parties, the matter is taken up for consideration.
Aggrieved by an order dated 19th November, 2007 passed by the Assessing Authority, Sales Tax Circle 'F', Jammu under section 7(9) of the J&K General Sales Tax Act, 1962 (hereinafter referred to as the Act of 1962), an appeal was filed by the petitioner on 23.06.2008.
It is an admitted position that as per second proviso to section 11 (C) of the Act of 1962, the appellant was required to pre-deposit 5% of the penalty imposed in the order impugned. The proof of payment is required to accompany the memo of the appeal. Admittedly, the said amount was deposited only on 23.09.2008 after the appeal stood filed by the petitioner.
The said appeal came to be taken up for hearing on 3rd of December, 2008 by the Deputy Commissioner, Commercial Taxes (Appeals) (Appellate Authority) Jammu. The appeal was dismissed inter alia on the ground that the appellant has not filed proof of payment of 5% of the penalty imposed in the order impugned. It is to be noted that the appellate authority has proceeded ex partein the matter and dismissed the appeal for the reason that the appellant has failed to explain the delay.
The said order dated 03.12.2008 came to be assailed by way of a second appeal before the State Sales Tax (Appellate) Tribunal, Jammu, which came to be rejected vide order dated 25th November, 2011.
Mr. Pranav Kohli, learned counsel for the petitioner points out that even in the second appeal filed by the petitioner, the appellate authority has not taken note that the amount as required stood deposited.
Before us, a very fair stand has been taken by Mr. D. C. Raina, learned Advocate General that the petitioner has, in fact, deposited the amount and that it may be given opportunity to explain the circumstances in which the deposit was delayed and the petitioners challenge to the impugned levy be decided on merits.
In view of the above, we direct as follow:
(i) The order dated 3rd of December, 2008 passed by the Deputy Commissioner, Commercial Taxes (Appeals) Appellate Authority, Jammu and order dated 25th November, 2011 passed by the State Sales Tax (Appellate) Tribunal, Jammu are hereby set aside and quashed and the matter shall stand remanded to the Deputy Commissioner, Commercial Taxes (Appeal's) (Appellate Authority), Jammu for considering the matter on merits afresh.
(ii) Liberty will be given to the petitioner to place explanation regarding the circumstances in which delay was occasioned in making the pre-deposit of 5% of the impugned penalty.
This writ petition is allowed in the above terms.