COMMISSIONER OF SALES TAX Vs. MANGILAL RAMESHWAR DAYAL

JUDGEMENT

(1.) UNDER Section 44 (1) of the Madhya Pradesh' General Sales Tax Act, 1958 (hereinafter called the Act), the Board of Revenue has referred to us the following question of law,: Whether, under Section 38 of the M. P. General. Sales Tax Act, 19. 58, read with Rule 58 of the rules thereunder, it is incumbent upon the appellate authority to give an opportunity of hearing to the appellant before summarily rejecting his appeal for non-payment of the full tax assessed that may be due, if a prayer for exemption from such tax had been made by the appellant in the memo of appeal ?

(2.) ON 28th August, 1959, the Sales Tax Officer, Gwalior, assessed the tax payable on sales made by the non-applicant in the year 1957-58 and directed him to pay Rs. 1,238-93 as such tax. Being aggrieved, the non-applicant appealed against the assessment in the prescribed form No. XXVI. Since he had paid only Rs. 412 out of Rs. 1,238-93, he made in the memorandum of appeal a prayer to the effect that the appeal may be admitted on part payment of the tax due. On 26th March, 1960, the Appellate Assistant Commissioner summarily dismissed the appeal under Rule 58 (1) on the ground that the full tax had not been paid and the reasons given for payment of a smaller amount of tax were not proper. Before that was done, the non-applicant was not heard in support of the reasons given by him for not paying the full amount of tax in respect of which he had filed his appeal. The non-applicant then appealed to the Board of Revenue which set aside the dismissal of the appeal and remitted the case to the Appellate Assistant Commissioner for giving to the non-applicant a hearing to enable him to substantiate his prayer for not being required to pay the full amount of tax as a pre-condition for entertaining his appeal. Thereupon, at the instance of the Commissioner, the Board referred to us the question stated in the opening paragraph.

(3.) RULE 58, under which the Appellate Assistant Commissioner dismissed the appeal, is reproduced below :