PRAKASH ELECTRIC STORES Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THIS is a reference under Section 44 of the M. P. General Sales Tax Act at the instance of the assessee. The Sales Tax Officer assessed certain amount of tax and penalty on the assessee. The assessee preferred an appeal before the Appellate Assistant Commissioner of Sales Tax on 8th May, 1964. Along with the memorandum of appeal it did not deposit the amount of tax and penalty that was imposed on it. But a direction was given to the assessee by the Appellate Assistant Commissioner to deposit one-third amount, the original figure being Rs. 150. It was subsequently corrected and the amount was to be deposited by 31st July, 1965. This time was later on extended to 6th September, 1965. However, the amount was not deposited within that time, but it was actually deposited on 5th September, 1966. In the meanwhile, the appeal was not taken up for orders. The order was passed on 9th November, 1967. By that order the appeal was dismissed as the one-third amount of tax and penalty was not deposited within time. Against the order of the Appellate Assistant Commissioner a second appeal was preferred before the Board of Revenue and the Board of Revenue by its order dated 18th February, 1969, after reviewing some of the facts, came to the conclusion that the one-third amount, not having been deposited, the appeal could not be taken to have been properly filed till 5th September, 1966, when the one-third amount was actually deposited. According to the Board of Revenue, a proper appeal could be deemed to have been filed only on 5th September, 1966. It was much beyond time from the date when the notice of the decision by the Sales Tax Officer had been served on the assessee. On that question of limitation alone, the second appeal was dismissed. An application was then made for making a reference to this court under Section 44 (1) of the M. P. General Sales Tax Act. On that application by the assessee the following five questions have been referred to this court for answer :

(2.) AFTER hearing learned counsel for both the parties we have come to the conclusion that the only question which arises out of the order of the Board of Revenue is question No. (1 ). The Board of Revenue has not applied its mind and has not decided any of the other questions and consequently, questions Nos. (2) to (5), not arising out of the order, could not be referred to this court. We will, therefore, deal with question No. (1) alone as under.

(3.) UNDER Section 38 of the M. P. General Sales Tax Act an assessee is entitled to file an appeal against an order of assessment. Sub-section (3) of Section 38 ran as follows: