GULSHAN RAI JOHAR Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THE Tribunal constituted under the M. P. General Sales Tax Act (hereinafter referred to as "the Act") has referred the following question to this Court for its opinion under Section 44 (1) of the Act:

(2.) THE facts which are necessary for consideration of the aforesaid question, may be stated in brief. An order of assessment was passed against the applicant on 2nd May, 1966. Against that order, an appeal was preferred by the assessee which was rejected by the Appellate Assistant Commissioner of Sales Tax on 29th January, 1968. This order was communicated to the assessee-applicant on 29th March, 1968 and he preferred a second appeal on 23rd April, 1968. The requisite amount of tax which was to be deposited to entitle the appeal to be admitted as contemplated by Sub-section (3) of Section 38 of the Act was, however, deposited on 11th February, 1969, i. e. , after about 10 months of the filing of the appeal. In this view of the matter, the Tribunal rejected the second appeal filed by the applicant on 29th November, 1969, as barred by time. However, certain questions were referred to this Court for its opinion. This reference was numbered as M. C. C. No. 217 of 1972. It came up for hearing before a Division Bench of this Court which reframed the questions referred to it in the following manner : Whether, in the facts and circumstances of the case, the appeal before the Tribunal should be taken to be filed on 23rd April, 1968 when it was actually filed or 11th February, 1969, when the amount of Rs. 3,300, as directed by the Tribunal, was deposited ? The question so reframed, was answered as follows : In the facts and circumstances of the case, the appeal should be taken to have been filed on 23rd April 1968, when the memorandum of appeal was presented. In view of this answer, the second appeal preferred by the applicant was taken up for hearing by the Tribunal.

(3.) AS is apparent from para 4 of the order of the Tribunal, learned Counsel appearing for the applicant urged only one point, namely, that the applicant had made a request that the amount payable at the time of admission of the appeal, be reduced as he was not given hearing before the Appellate Assistant Commissioner who issued him the notice on 8th August, 1966 asking him to deposit Rs. 6,890. This plea was repelled by the Tribunal. It held that sufficient opportunity had been given to the applicant by the Appellate Assistant Commissioner in the matter of payment of the requisite amount of tax. The Tribunal has also held that it was really the applicant who had not availed of the various opportunities granted by the Appellate Assistant Commissioner in the matter of payment of tax. In this view of the matter, the Tribunal came to the conclusion that the Appellate Assistant Commissioner could not be said to have dismissed the appeal summarily for non-payment of tax illegally.