ORDER S. Saghir Ahmad, J.
1. Leave granted.
2. We have heard learned Counsel for the parties. We have also gone through various orders passed by this Court at the interim stage in other cases.
3. Section 39(5) together with its first proviso of the Haryana General Sales Tax Act 1973 provides as under :
39(5) No appeal shall be entertained unless it is filed within sixty days from the date of the order appealed against and the appellate authority is satisfied, that the amount of tax assessed and the penalty and interest, if any, recoverable from the person has been paid;
Provided that the said authority, if satisfied that the person is unable to pay the whole of the amount of tax assessed, or the penalty imposed, or the interest due, he may, if the amount of tax and interest admitted by the appellant to be due has been paid, for reasons to be recorded in writing, entertain the appeal and may stay the recovery of the balance amount subject to the furnishing of a bank guarantee or adequate security in the prescribed manner to the satisfaction of the appellate authority;
4. The requirement under Sub-section (5) that the appeal will not be entertained unless the amount of tax assessed and the penalty and interest, if any, recoverable from the person concerned have been paid is not mandatory as under the proviso quoted above, a discretion is vested in the authority that if the person is unable to pay the whole of the amount of tax assessed, the appeal may be entertained and heard on merits without requiring that person to deposit the entire amount of tax and may stay the recovery thereof subject to furnishing of a bank guarantee or an adequate security to the satisfaction of the appellate authority.
5. Having regard to the facts and circumstances of this case and the question involved in the appeals pending before the authority, we dispose of these appeals by directing that instead of depositing the entire amount of tax assessed on the appellant, he may furnish adequate security to the satisfaction of the appellate authority within such time as may be fixed by the authority. If this is done, the appeals shall be heard on merits.