1. This is an appeal that has been preferred by the appellant against the order dated 07-07-2009, passed by the Ld. Dy. Commissioner, Sales Tax (Appeals) (Appellate Authority), Jammu, in Appeal No. 20/DCJ/AP/ST/1999-2000. The Appellate Authority has dismissed the appeal of the appellant summarily on the ground that the appellant has not filed proof of payment of 50% of the penalty imposed in the order impugned. According to the Assessing Authority this is required under clause (c) of the 2nd Proviso to Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962.

2. The appellant in appeal before this Tribunal has now assailed the order of the Appellate Authority on the grounds interalia, that the appellant brought it to the notice of Ld. Dy. Commissioner, Sales Tax (Appeals), Jammu, that the appeal had been filed by him u/s 11 of the J&K GST Act, 1962, for the account period 1992-93 when there was no such condition or any provision in that section under which the Ld. Appellate Authority could insist on pre-deposit of 50% of the penalty imposed or 20% of the assessed tax for the purpose of entertainment of the appeal. In support of this contention the appellant depended on the judgment of the Hon'ble State Sales Tax Appellate Tribunal in the case "M/s Satnam Impex (P) Ltd. Vs Assessing Authority, Sales Tax, Circle-H, Jammu dated 30-01-2003" in which the Hon'ble Tribunal has held that condition of depositing 50% penalty is not applicable to the facts and circumstances of the case, a copy of which is also filed by the appellant.

3. The moot question requiring consideration is whether the order of the Appellate Authority can be maintained on the reasoning projected therein, i.e. whether the appellant was obliged to file proof of the payment of 50% of the penalty imposed on him by the Assessing Authority, as per the requirement of clause (c) of the 2nd proviso to Jammu and Kashmir General Sales Tax Act, 1962. In order to have a proper understanding of the matter it will be appropriate to go direct to the Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962. The text of the section is:-

Section 11:- Appeals:- A dealer or any other assessee objecting to an order passed by the Assessing Authority or any other Officer authorized under Section 15-A, other than the Deputy Sales Tax Commissioner, may within 30 days from the date on which he is served with the notice of demand, appeal to the Appellate Authority or if the order is made by the Dy. Commissioner, to the Commissioner;

Provided that the Appellate Authority may admit an appeal after the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period;

Provided further that no appeal shall be entertained by the said authority unless it is satisfied that:-

(a) Where all the returns for a year have been filed, the amount of tax 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 higher, has been paid; or

(b) Where some of the returns for a year have not been filed or no return has been filed for such year, the amount of tax due under this Act, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act or 20% of the amount of tax assessed, whichever is higher, has been paid; or

(c) in case the appeal is against the imposition of penalty, 50% of the penalty levied has been paid;

[Provided that the Appellate Authority may, for reasons to be recorded in writing, stay the recovery of the disputed amount of tax and penalty. However, the stay will not cover the amount of tax and penalty payable under clauses (a), (b) and of the 2nd Proviso]

Explanation:- Nothing in this sub-section shall apply to the cases where the Commissioner in exercise of the powers vested under Section 8 makes an order extending the date of pay

Click Here to Read the rest of this document