The main legal point established is the interpretation of the admitted tax payable for appeal under S.34(1) of the Kerala General Sales Tax Act, 1963, which is determined to be the tax payable on the turnover assessed by the Sales-tax Officer to the extent it is not objected to in the appeal.

1. The petitioner was assessed by the first respondent, the Sales Tax Officer, Cannanore under the General Sales Tax Act, 1125 for the year 1962-63 by his order Ext. P-3 dated 20 31967. The assessment proceedings were taken and completed under the Kerala General Sales Tax Act, 1963, by virtue of Subsection (2) of S.61 of this Act. The petitioner filed an appeal from Ext. P-3 before the second respondent the Additional Appellate Commissioner of Agricultural Income-tax and Sales-tax, Cannanore under S.34 of the 1963 Act. The second proviso to Sub-section (1) of S.34 provides that no appeal shall be entertained unless it is accompanied by satisfactory proof of the payment of the tax or other amounts admitted by the appellant to be due. There is no dispute that it is not necessary that the proof of payment of the tax or other admitted amounts should accompany the appeal, but it is sufficient that it is furnished before the hearing of the appeal. The net turnover furnished by he petitioner' in its return before the Sales Tax Officer was Rs. 6,15,739.32. But the return was rejected; and the turnover was assessed at Rs. 23,20,212.50. The petitioner paid the tax due on the turnover furnished by it before the hearing of the appeal. The second respondent, however, considered that what the petitioner paid did not satisfy the requirement of the proviso and he called upon the petitioner to pay what according to him was payable by way of balance towards the admitted tax. The petitioner did not pay the same, with the result that the second respondent by an order Ext. P-5 dated 4 31969 dismissed the appeal. This writ petition has been filed to quash Exts. P-3 and P-5, and to direct the first respondent not to take any coercive action against the petitioner for payment of the tax and surcharge due under Ext. P-3.

2. The fact that the petitioner's appeal, as contended for by it, bad been wrongly dismissed by the appellate authority is not a ground for quashing the order of assessments, nor to restrain the assessing authority from realising the tax payable thereunder. The petitioner is not, therefore, entitled to have any such relief. The petitioner's counsel rightly pressed before me only the contention that the dismissal of the appeal was contrary to law and that the second respondent must be directed to re-admit the appeal and dispose of the same according to law.

3. It appears from Ext. P-5 that during the course of the assessment proceedings the petitioner filed a statement before the first respondent. In that statement, the taxable turnover is shown as Rs. 14,96,406. 87, and total tax payable by the petitioner comes to Rs. 55,952.34, while the tax payable on the net turnover shown in the petitioner's return is only Rs. 13,950.77. According to the second respondent, the tax admitted by the petitioner is Rs. 55,952.34; and it has to pay the balance Rs. 42,001. 47. It is because the petitioner failed to pay the said amount that the second respondent dismissed the appeal by his order Ext. P-5.

4. The only question for decision is what is the admitted tax payable by the petitioner under the second proviso to S.34(1) of the 1963 Act, for his appeal being entertained. Three views are plausible. They are (i) the admitted tax is the tax payable on the turnover furnished by the assessee in the return; (ii) it is the tax payable on the turnover conceded by the assessee during the course of the assessment proceedings; and (iii) it is the tax payable on the turnover assessed by the Sales-tax Officer to the extent it is not objected to in the appeal. The petitioner's counsel referred me to a Division Bench decision of the Allahabad High Court in Ghanshyam Dass Balmukund v. State of Uttar Pradesh (1969) 23 S. T. C. 283, which takes the third view. The question which arose for decision in that case was precisely the one which arises here. The proviso to S.9(1) of U. P. Sales Tax Act, 1948 corresponds to the second proviso to S.34 (1) of the 1963