JUDGMENT
G.S. Singhvi, J.
1. This is a petition for quashing order dated December 8, 1999 (annexure P.1) passed by the Joint Excise and Taxation Commissioner (Appeals), Rohtak (respondent No. 3) and orders dated September 12, 2001 (annexure P.3) and September 13, 2002 (annexure P.5) passed by the Sales Tax Tribunal, Haryana.
2. The petitioner is registered as a dealer under the Haryana General Sales Tax Act, 1973 (for short, “the Act”). By an order dated March 30, 1999, the Excise and Taxation Officer-cum-Assessing Authority, Gurgaon (E), created a demand of Rs. 8,55,063 against the petitioner for the period from August 15, 1995 to March 31, 1996. The petitioner challenged the demand by filing an appeal under Section 39 of the Act. It also applied for waiver of requirement of depositing the disputed amount as a condition precedent to the entertaining of appeal. Vide order dated December 8, 1999, respondent No. 3 directed the petitioner to pay the amount of additional demand in six monthly instalments starting from October, 1999 and furnish surety bonds for the balance amount to the satisfaction of the Assessing Authority. The petitioner did not deposit the amount in terms of the directions given by respondent No. 3. Therefore, vide order dated December 8, 1999 (annexure P.1), respondent No. 3 dismissed the appeal. The Sales Tax Tribunal confirmed the order passed by respondent No. 3 and dismissed the appeal filed by the petitioner by observing that it had neither complied with the order passed by respondent No. 3 nor challenged the same. Review application filed by the petitioner was dismissed by the Sales Tax Tribunal by recording the following order :
“The present petition has been filed for seeking review of the order of the Tribunal dated 12th November, 2001 passed in STA No. 889 of 1999-2000 whereby the appeal of the appellant was dismissed. This case came up for hearing today. Neither in the review petition nor at the time of hearing, the petitioner has been able to make out a case which could warrant review of the impugned order under Section 41 of the HOST Act, 1973. None of the parameters laid down under Section 41 is attracted to the present case and hence, in these circumstances, the present review petition is dismissed.”
3. Shri Jitender Dhanda argued that even though the petitioner had not made deposit in terms of order dated December 8, 1999, respondent No. 3 should have given it an opportunity of hearing before ordering dismissal of the appeal. He further argued that non-deposit of the amount of additional demand did not justify dismissal of the appeal.
4. In our opinion, there is no merit in the argument of the learned counsel. In Emerald International Ltd. v. State of Punjab [2001] 122 STC 382 ; (1997) 2 PLR 797, a Full Bench of this Court repelled the challenge to the constitutionality of Section 20 of the Punjab General Sales Tax Act, 1948 and Section 39 of the Act and laid down the following propositions :
“(a) The appeal is a creation of a statute and in case a person wants to avail of the right of appeal, he has to accept the conditions imposed by the statute.
(b) The right of appeal being a creature of statute, the Legislature could impose conditions for exercise of such a right. Neither there is a constitutional nor legal impediment for imposition of such a condition.
(c) The right of appeal is neither natural nor inherent attaching to a litigation and such a right neither exists nor can be assumed unless expressly given by the statute.
(d) Even if this Court was to interpret the bare provisions of two statutes, i.e., the Punjab General Sales Tax Act, 1948 and the Haryana General Sales Tax Act, 1973, it could safely be held that there is a complete bar to the entertainment of an appeal by the appellate authority without the payment of tax amount unless the authority is satisfied that the dealer is unable to pay the amount so assessed and only in that situation the appellate authority for the reasons to be recorded in writing can entertain the appeal without deposit of the payment of such amount.
(e) Neither on the wording nor in view of the spirit of the Punjab and Haryana Acts, it is possible to hold that the appellate authority should see the prima facie nature of the case while hearing the stay matter.
(f) The factum of tax assessed being illegal cannot be a relevant consideration for grant of stay by an Appellate Authority.
(g) The High Court in exercise of its jurisdiction, under Article 226 of the Constitution of India in rarest of the rare cases in the given facts and circumstances, can grant stay and waive the condition of pre-deposit of tax and the existing alternative remedy in such circumstances would be no ground to refuse interference.”
5. In State of Haryana v. Maruti Udyog Ltd. [2001] 124 STC 285 ; (2000) 10 JT 166 the Supreme Court referred to the aforementioned judgment of the Full Bench of this Court and held as under :
“An appeal, for its maintainability, must have a clear authority of law. Sub-section (5) of Section 39 of the Act, vests a discretion in the appellate authority to entertain the appeal if it is filed within sixty days and the amount of tax assessed along with penalty and interest, if any, recoverable from the persons has been paid. The aforesaid restriction is subject to the proviso conferring discretion upon the appellate authority to dispense with the deposit of the amount only on proof of the fact that the appellant was unable to pay the amount. Before deciding the appeal, the appellate authority affords an opportunity to the party concerned, to either pay the amount or make out a case for the stay in terms of proviso to Sub-section (5) of Section 39 of the Act. Once the conditions specified under Sub-section (5) of Section 39 are complied with, the appeal is born for being disposed of on merits after hearing both the sides.
Sub-section (5) regulates the exercise of right of appeal conferred upon an assessee under Section 39 of the Act, the object being to keep in balance the right of the aggrieved person and the right of the State to speedy recovery of tax………. The inability mentioned in the proviso refers to the paying capacity and financial position of the company and its scope cannot be widened……… The word, ‘pay’, with its grammatical variation and cognate expressions, when used with reference to the tax amount, means ‘deliver and render’ the amount, it indicates the discharge of an obligation rather than an investment of money…….. The word ‘unable’ used in the proviso has been defined to mean, ‘not having sufficient strength, power and means’. In relation to money, it means insufficiency of funds. It follows, therefore, that the inability to pay the amount is referable to the paying capacity of the person concerned and not his legal or actual liability to pay the amount demanded.”
6. By applying the ratio of the judgments of the Full Bench in Emerald International Ltd. v. State of Punjab [2001] 122 STC 382 (P&H) and of the Supreme Court in State of Haryana v. Maruti Udyog Ltd. [2001] 124 STC 285, we hold that the impugned orders do not suffer from any legal infirmity and there is no justification, legal or otherwise, to direct respondent No. 3 to entertain the appeal of the petitioner without insisting on deposit of the additional demand, more so because the petitioner did not challenge order dated December 8, 1999 passed by respondent No. 3 and no material has been placed on the record of this petition to show that it was unable to pay the amount of additional demand.
For the reasons mentioned above, the writ petition is dismissed.