MAHADEO SAHRA AND SONS Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE Assistant Commissioner of Sales Tax, Indore, by order dated 4th May, 1970, assessed the petitioner to Central sales tax at Rs. 11,280. 18 for the period from 1st November, 1959, to 20th October, 1960. The petitioner filed an appeal to the Deputy Commissioner, Sales Tax, which was dismissed by order dated 28th November, 1970. The petitioner filed a second appeal to the Sales Tax Appellate Tribunal (Board of Revenue ). The appeal was admitted and it was fixed for hearing on 18th May, 1972. The Tribunal sent a notice of the date of hearing to the petitioner's counsel, Ladha and Co. No one appeared on 18th May, 1972, before the Tribunal and the appeal was dismissed for default of appearance. The order was communicated to the petitioner on 23rd June, 1972. The petitioner then filed this petition under Article 226 of the Constitution for setting aside the order of the Tribunal dismissing the appeal for default.

(2.) THE Tribunal dismissed the appeal for default of appearance of the petitioner under Rule 59 of the Madhya Pradesh General Sales Tax Rules, 1959. The contention of the learned counsel for the petitioner in support of the petition is that the said rule in so far as it empowers the appellate authority to dismiss an appeal on default is in excess of the rule-making power, being in conflict with the provisions of the Madhya Pradesh General Sales Tax Act, 1958, and is ultra vires and void.

(3.) FOR examining the correctness of the above contention raised by the learned counsel, it is necessary to refer to the relevant provisions in the Act and the Rules. Sub-section (1) of Section 38 confers right of appeal against an original order of assessment with or without penalty. Sub-section (2) of the same section confers a right of second appeal against an order passed in first appeal. Sub-section (5) of Section 38 indicates the orders which can be passed in first or second appeal under Sub-section (1) or (2 ). Sub-section (6) relates to finality of these orders. These Sub-sections read as follows :