Compliance with statutory requirements and filing appeals within the prescribed period is essential for the Court to entertain the appeal.

1. No one appeared in this appeal on the last two dates and today also the Ld. Counsel for the parties have chosen to remain absent.

2. I have perused and thoughtfully considered the material on record.

3. This appeal has been preferred against the order dated 30-12-2008, passed by the Ld. Dy. Commissioner, Commercial Taxes (Appeals) (Appellate Authority), Jammu, in Appeal No. 25/DCJ/AP/ST/2007-2008. The Appellate Authority has dismissed the appeal of the appellant in limini on the ground that the appellant has not filed proof of payment of 20% of the assessed tax and 50% of the penalty imposed in the order impugned. This is required under clauses (b) & (c) of the 2nd Proviso to Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962. He was afforded an opportunity under Notice No: 25/ DCJ/AP/ST/2007-2008/218 dated 10-05-2007, to explain the reasons for failure. The Ld. Counsel for the appellant, Sh. Rajinder Dutt, appeared several time and every time sought adjournment on the plea that the stay application is pending before worthy Commissioner, Commercial Taxes. After receiving the list of pending cases from the ALR (CCT's Office) the Appellate Authority declared that there is no stay application pending for disposal before the Higher Authority, whereafter the appeal of the appellant was dismissed.

4. What requires consideration is to see 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 20% of the assessed tax and 50% of the penalty imposed on him by the Assessing Authority, as per the requirement of clauses (b) and (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 reproduce the relevant excerpts of Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962, herein below:-

"Section 11:-..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 payment.

5. From the perusal of the Section 11 Supra, what comes to the fore is that the deposit of 20% of the amount of tax assessed and 50% of the penalty where the appeal is against the order of imposition of penalty, is a statutory requirement. The terms of Section 11 clauses (b) and (c) are mandatory in nature as the word used is "shall". Section 11 (b) and (c) give the Appellate Authority the teeth to proceed in a matter. Filing of the proof of payment of 20% of the amount of tax assessed and 50% of the penalty levied is a condition precedent for lodging an appeal before the Appellate Authority which, as per the explanation added to Section 11, can be relaxed only where the extension of the date of payment, is granted, by an order, made by the Commissioner, in exercis

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