1995 (2) TMI 390 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Right of the assessee to amend the memorandum of appeal by furnishing the grounds of appeal.
2. Authority of the appellate body to summarily reject an appeal for failure to set out grounds of appeal.

Issue-wise Detailed Analysis:

1. Right of the Assessee to Amend the Memorandum of Appeal:
The primary issue revolves around whether the assessee has the right to amend the memorandum of appeal by furnishing the grounds of appeal. The assessee filed an appeal under section 55 of the Bombay Sales Tax Act, 1959, but the memorandum of appeal was incomplete as it did not include the grounds of appeal in column 7. The Deputy Commissioner rejected the appeal as "not tenable" due to this omission.

The Tribunal upheld the rejection, stating that the omission to mention the grounds of appeal was not an omission envisaged under rule 60(1) of the Bombay Sales Tax Rules, 1959, which would require the appellate authority to give a reasonable opportunity to amend the appeal. However, the High Court disagreed, stating that the entire procedure of submission of appeals contained in rule 58 is directory, not mandatory. The High Court emphasized that rule 60 requires the appellate authority to give a reasonable opportunity to amend the memorandum of appeal before rejecting it summarily.

The High Court concluded that an appeal cannot be summarily rejected for failure to set out the grounds of appeal without giving a reasonable opportunity to the appellant to amend the memorandum of appeal. This opportunity can be provided at any time and is not constrained by the period of limitation for filing the appeal.

2. Authority of the Appellate Body to Summarily Reject an Appeal:
The second issue concerns the authority of the appellate body to summarily reject an appeal for the omission of grounds of appeal. Rule 60 of the Bombay Sales Tax Rules, 1959, allows for the summary rejection of an appeal if it omits any particulars required under rule 58. However, it mandates that no appeal shall be summarily rejected unless the appellant is given a reasonable opportunity to amend the memorandum of appeal.

The High Court noted that the Tribunal's interpretation that an appeal without grounds is not an appeal in the eye of law was incorrect. The omission to set out the grounds of appeal is considered an irregularity that can be rectified by the appellant. The High Court stressed that the period of limitation applies only to the filing of the appeal and not to the rectification of omissions or defects in the memorandum of appeal.

The High Court highlighted that summary rejection of an appeal without giving an opportunity to amend the memorandum of appeal violates the principles of natural justice. Sub-rule (3) of rule 60 further clarifies that an appellant can apply to set aside the summary rejection if they were prevented by sufficient cause from amending the memorandum of appeal.

Conclusion:
The High Court held that the Tribunal was not justified in holding that a memorandum of appeal not containing the grounds of appeal is not an appeal in the eye of law. The appeal does not cease to be an appeal due to such omission, which is an irregularity that can be cured. Therefore, the appellate authority must allow the appellant to amend the memorandum of appeal and supply the omission.

The question referred to the High Court was answered in the negative and in favor of the assessee, indicating that the Tribunal's decision was incorrect. No order as to costs was made.

Reference answered in the negative.