9911796707
TMI Blog1987 (8) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary 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 secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 4.. It has been urged by the learned counsel for the applicant-assessee that the applicant deserved to be given an opportunity of hearing before rejecting the appeal summarily. Reliance on certain decisions has been placed by learned counsel for the applicant in support of this submission. We, however, do not find it necessary to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is of the admission of the appeal and the second stage is of hearing of the appeal. Sub-section (3) of section 38 of the Act contemplates that no appeal shall be admitted unless the requirement of deposit of tax contemplated by the said sub-section has been fulfilled. The stage of hearing of an appeal arises only after it has been admitted. Therefore, if an appeal is not to be admitted for non-deposit of tax, the hearing contemplated at that stage is in regard to the matter of deposit of tax only. Merits of the appeal do not come up for consideration at that stage. Consequently, if an appeal has not been admitted on the ground of non-payment of tax, the plea which can be raised in second appeal is in regard to the validity of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first appellate authority. In this view of the matter, in second appeal filed against the order dismissing the appeal in default, merits of the various pleas would naturally come up for consideration and can be considered by the second appellate authority. 9.. In the instant case, as seen above, the stage of hearing the appeal on merits had not reached at all. The appeal was rejected summarily by the first appellate authority on the ground of non-deposit of the requisite amount of tax, notwithstanding the fact that several opportunities were given to the applicant in this behalf. In other words, it is a case where the appeal was not admitted at all. 10.. In view of the foregoing discussion, our answer to the question referred to us i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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