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TMI Blog1995 (2) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Rules, 1959 ("the Rules'), for the failure of the appellant to set out the grounds of appeal in the memorandum of appeal filed under section 55 of the Act. The facts giving rise to this controversy may be briefly stated thus: The assessee filed an appeal under section 55 of the Bombay Sales Tax Act, 1959 ("the Act"), before the Deputy Commissioner of Sales Tax (AppealMofussil), Nagpur ("the Deputy Commissioner") on April 4, 1989, against a revisional order passed by the Assistant Commissioner of Sales Tax (Admn.), Nasik Division, Range II, Dhule, under section 57 of the Act. The Deputy Commissioner issued a notice to the assessee on July 11, 1989, wherein it was pointed out that the memorandum of appeal filed by him was incomplete in the frollowing respects: "(i) The memorandum of appeal does not bear the court-fee stamp of the prescribed denomination, i.e., of Rs. 2.50. It is short by the court-fee stamp of Rs. 2.50. (ii) Court-fee of the denomination of Re. 1 is not affixed on the certified copy/copies of assessment/appeal/any other order appealed against. (iii) The proof of payment or dues as per demand notice/appeal order is not attached." By the above no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to attract the application of the proviso requiring the appellate authority to give a reasonable opportunity to the appellant for the amendment of appeal by furnishing the grounds of appeal. Hence this reference at the instance of the assessee. 3.. We have heard the learned counsel for the parties and perused the relevant provisions of the Act and the Rules dealing with appeals. Section 55 of the Act provides for an appeal from every original order passed under the Act by the Assistant Commissioner to the Deputy Commissioner. Sub-section (1) thereof reads: "55. Appeals.--(1) An appeal, from every original order, not being an order mentioned in section 56 passed under this Act or the Rules made thereunder, shall lie" (a) if the order is made by a Sales Tax Officer, or any other officer subordinate thereto, to the Assistant Commissioner; (b) if the order is made by an Assistant Commissioner, to the Deputy Commissioner; (c) if the order is made by a Deputy Commissioner, Additional Commissioner, or Commissioner, to the Tribunal." Sub-section (4) of section 55 lays down limitation of 60 days for filing an appeal. It reads: "(4) Subject to the provisions of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the above memorandum of appeal/application for revision do hereby declare that what is stated herein is true to the best of my knowledge and belief. ................' (Signature) (2) The memorandum of appeal or the application for revision shall be accompanied by either the order in original against which it is made or duly authenticated copy thereof, unless the omission to produce such order or copy is explained at the time of the presentation of the appeal or application for revision, to the satisfaction of the appellate or revising authority. (3) An appeal against an order of assessment or a second appeal against such order passed in appeal, shall as far as possible, be in accordance with form 37." Sub-rule (3) of rule 58 thus provides that the appeal against an order of assessment should as far as possible be in accordance with form No. 37. Under form 37, an appellant is required to furnish informations sought for therein in different columns. Column 7 thereof reads: "7. (Enter here the grounds relied on for the purpose of this appeal)." Relief sought for in the appeal is to be specified in column 8 which is in the following terms: "8. The appellant, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the application for revision omits to state any of the particulars required under rule 58 or is not accompanied with the order against which it is made or a duly authenticated copy thereof, the appeal or the application for revision may be summarily rejected: Provided that, no appeal or application for revision shall be summarily rejected under this sub-rule unless the appellant or the applicant is given a reasonable opportunity to amend the memorandum of appeal or the application for revision, as the case may be. (2) The appeal or application for revision may also be summarily rejected on grounds other than those specified in sub-rule (1) which the appellate or revising authority may consider sufficient and which shall be reduced to writing by the appellate or revising authority: Provided that before an order summarily rejecting an appeal or an application for revision under this sub-rule is passed, the appellant or applicant concerned shall be given a reasonable opportunity of being heard. (3) If within thirty days from the date on which any appeal or application for revision is summarily rejected under sub-rule (1) or (2), the appellant or, as the case may be, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould render rule 60 wholly nugatory. 7.. We are, therefore, clear in our mind that the period of limitation applies only to the filing of appeal. If the appeal is filed within time, omission to furnish any of the particulars or informations required under the rules or under the form may be rectified by the appellant at any time thereafter. If the appellate authority finds out any such omission, it is incumbent on its part to give an opportunity to the appellant to amend the memorandum of appeal to supply the omissions or to rectify the defects. It is only on the failure of the appellant to do so, despite opportunity being given for that purpose, that the appellate authority gets the power to reject the appeal summarily. Summary rejection of appeal for any defect or omission in the memorandum of appeal without giving an opportunity is specifically prohibited by the proviso to sub-rules (1) and (2) of rule 60. Even otherwise, it would have been obligatory on the part of the appellate authority to give such an opportunity before summarily rejecting the appeal to meet the requirements of principles of natural justice. Rejection of appeal without giving such an opportunity would be vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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