COMMISSIONER OF SALES TAX Vs. LAXMILAL JAIN

JUDGEMENT

(1.) THIS is a reference under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, for answering the following ques tion by this court:

(2.) THE said question of law arises on the following facts : The respondent was assessed to sales tax for the period from 2nd November, 1964, to 21st October, 1965. An amount of Rs. 2,292. 50 had been credited by the respondent as advance sales tax. As per the assessment order, dated 25th September, 1967, the respondent was assessed to a further sum of Rs. 365. 15. Thus, the total assessment for the said period came to Rs. 2,657. 65 out of which an amount of Rs. 2,292. 50 had already been deposited as advance tax along with the quarterly return. The respondent, feeling aggrieved by this additional demand, preferred an appeal before the Appellate Assistant Commissioner of Sales Tax. He did not deposit the balance of Rs. 365. 15, However, by a notice issued to the respondent it was called upon to deposit an amount of Rs. 250 by 31st January, 1968, as required by the proviso to Section 38 (3) of the M. P. General Sales Tax Act, 1958. The respondent did not make that deposit and, therefore, under Rule 58 (1) of the M. P. General Sales Tax Rules, 1959, the Appellate Assistant Commissioner of Sales Tax rejected the respondent's appeal summarily. On a further appeal filed by the respondent, the learned President of the Board of Revenue by the order in question (petitioner's annexure C) allowed the assessee's appeal holding that what the proviso to Section 38 (3) of the M. P. General Sales Tax Act, 1958, contemplated was merely deposit of one-third of the amount of the total tax demanded and not the balance of the tax due. In that view, it was held that the deposit of advance tax made by the respondent with the return was sufficient compliance with the requirement of Section 38 (3) of the M. P. General Sales Tax Act, 1958.

(3.) SECTION 38 (3) of the M. P. General Sales Tax Act, 1958, was amended with effect from 15th April, 1968. Subsequent to the amendment, the Section specifically used the words "balance due from the dealer under the order of assessment with penalty". But these words were not there in the provision prior to the amendment dated 15th April, 1968. It may be relevant to reproduce the Section as it stands after the amendment and as it stood prior to the amendment. Section 38 (3) as it stands after the amendment: "no first or second appeal against an order of assessment, with or without penalty or against an order imposing a penalty shall be admitted by the appellate authority unless the tax with penalty, if any, or the penalty, as the case may be, in respect of which the appeal has been preferred, has been paid :