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TMI Blog1962 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conformity with the requirements of rule 57. (2) An appeal or application for revision may also be summarily rejected on any other ground which should be reduced to writing by the appellate or revising authority: Provided that before an order summarily rejecting an appeal or application for revision under this sub-rule is passed, the appellant or applicant shall be given a reasonable opportunity of being heard." It is obvious, and is also not disputed, that the rule does not specifically require the appellate authority to give to the appellant a reasonable opportunity of being heard before his appeal is dismissed summarily for not paying the full amount of tax in respect of which he has filed his appeal. 4.. Section 38(3) of the Act, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g his prayer. 5.. Section 35 of the Act gives to the Tribunal, the Commissioner and certain other persons appointed under the Act to assist him certain powers of a court of law. It corresponds to section 37 of the Incometax Act, 1922. In Dinshaw Darabshaw v. Commissioner of Income-tax[1943] I.L.R. 1943 Bom. 152 at p. 164; 11 I.T.R. 172., Beaumont, C.J., stated: "Although, no doubt, an Income-tax Officer making an assessment is not strictly acting as a court of law, it is clear from section 37 of the Indian Income-tax Act that he is acting in a quasi-judicial capacity, and he ought to conform to the more elementary rules of judicial procedure. " In In re Harmukhrai Dulichand [1928] I.L.R. 56 Cal. 39 at p. 48., Rankin, C.J., stated: "Fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t." In Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal[1955] 1 S.C.R. 941; 26 I.T.R. 775., Mahajan, C.J., observed that, on this subject, the rule of law was fairly and rightly stated in Gurumukh Singh's case(2) and set aside the decision of the Income-tax Tribunal on the ground that it violated certain fundamental rules of justice and the assessee had not had a fair hearing. In Mahadayal Prem Chandra v. Commercial Tax Officer, Calcutta[1959] S.C.R. 551; 9 S.T.C. 428., the Supreme Court interfered with an assessment made under the Bengal Finance (Sales Tax) Act, 1941, on the ground that the appellants were not given an opportunity to meet the points urged against them and the whole procedure was contrary to natural ..... X X X X Extracts X X X X X X X X Extracts X X X X
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