COMMISSIONER OF SALES TAX Vs. BALAJI COTTON CO

JUDGEMENT

(1.) BY this reference under Section 44 (1) of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as "the Act"), the Board of Revenue has referred the following question of law to this Court for its opinion :

(2.) THE material facts giving rise to this reference briefly are as follows : While framing assessment of the assessee for the period from 4th November, 1975 to 23rd October, 1976, the Sales Tax Officer rejected the books of account and made a best judgment assessment. After adjusting the amount of tax paid by the assessee, the assessee was held liable to pay Rs. 4,04,207. This sum consisted of tax amounting to Rs. 3,02,286 and penalty amounting to Rs. 1,00,000. The assessee preferred an appeal before the Appellate Deputy Commissioner who held that as the amount deposited by the assessee was not as required by the provisions of Section 38 (3) of the Act, as it stood at the material time, the appeal was liable to be rejected summarily. The contention advanced on behalf of the assessee that it had complied with the provisions of Section 38 (3) of the Act at the time when the appeal was taken up for consideration was rejected on the ground that such compliance was not within the time prescribed therefor. The assessee thereupon preferred a second appeal before the Tribunal. It was urged on behalf of the assessee that both the provisions of Clauses (a) and (c) of Section 38 (3) were attracted and that the assessee was required to deposit 10 per cent of the amount of tax demanded and 50 per cent of the amount of penalty levied. This contention was upheld by the Tribunal. The other contention advanced on behalf of the assessee that it had deposited the amount as required by Section 38 (3) (c), after the receipt of the show cause notice and in view of that fact the summary dismissal of the appeal was not justified, was not considered by the Tribunal as the Tribunal upheld the first contention advanced by the assessee. The Tribunal accordingly allowed the appeal and remanded the case to the Appellate Deputy Commissioner, Sales Tax, for deciding the appeal afresh. Aggrieved by the order passed by the Tribunal, the department sought reference and it is at the instance of the department that the aforesaid question of law has been referred to this Court for its opinion.

(3.) BEFORE we proceed to appreciate the contentions advanced on behalf of the parties, it would be useful to refer to the relevant provisions of Section 38 (3) of the Act in force on 27th April, 1979, when the appeal was filed. These provisions are as follows :