2024-VIL-113-J&K
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VAT High Court Cases

Jammu & Kashmir General Sales Tax Act, 1962 - Petitioner grievance that he is not liable to pay any tax for the work executed by him as the tax is to be paid by the Principal Contractor, hence, if the petitioner is compelled to pay the deposit for preferring appeal against assessment order, it will cause serious injustice to the petitioner – Power of Commissioner to waive payment of deposit - HELD - Assuming that there was an error made by the assessing authority, and that the petitioner filed the appeal under Section 11 of the Act, which is meritorious, yet without fulfilling the requirement of the statute for depositing 20% of amount of tax assessed or the amount of tax admitted by the assessee, whichever is higher, the appellate authority cannot entertain the appeal. Similarly, in case of appeal against the imposition of penalty, unless 50% of penalty levied is paid, the appellate authority cannot entertain the appeal. This requirement of deposit by way of payment to activate any appeal under Section 11 of the Act cannot be waived or suspended or deferred by any order passed by the Commissioner – the provisions of the ‘Explanation’ to sub-section (1) of Section 11 of the JKGST Act, 1962 have to be understood in the context of Section 8 of the Act. Though ‘Explanation’ to sub-section (1) of Section 11 is part of Section 11 of the Act, yet it does not empower the Commissioner to defer or waive the payment contemplated under Clauses (a), (b) and (c) to the second proviso of sub-section (1) of Section 11 of the Act., which are to be paid for the appeal filed under Section 11 of the Act to be entertained - The statute has not made any provision for any exception to the requirement for payment to be made at the time of filing of appeal - ‘Explanation’ to the third proviso to Sub-section (1) of Section 11 of the Act cannot be understood to mean that if the Commissioner passes an order under Section 8 of the Act for extending the time of payment, the deposit required to be made at the time of filing of the appeal can be waived or deferred - the petitioner will be liable to pay necessary amount as contemplated under Clauses (b) and (c) to the second proviso to Sub-Section (1) of Section 11 of the Act for the appeal to be entertained by the appellate authority – the petition is dismissed
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