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TMI Blog1997 (5) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... onvenient answer of both the aforesaid questions, the facts given in Misc. Petition No. 1859 of 1984 (M.P. Electricity Board v. Additional Assistant Commissioner, Sales Tax) are taken into consideration. 3.. The petitioner carries on business of manufacture and sale of electrical energy and is a dealer registered under the M.P. General Sales Tax Act, 1958. The petitioner was required to file returns in respect of the turnover for each quarter under the scheme of the said Act. The return was to be filed quarterly along with the tax with the evidence of tax paid, i.e., challan of depositing the money. The petitioner filed a consolidated return for all the periods, i.e., one return and deposited the tax. The petitioner was assessed to sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax [1988] 71 STC 258. The learned counsel for the petitioner/assessee also relied on the decision of the honourable Supreme Court given in the case of Mela Ram Sons v. Commissioner of Income-tax [1956] 29 ITR 607; AIR 1956 SC 367, arising out of income tax. However, the learned single Judge of this Court finding two conflicting decisions, has referred the aforesaid questions for answer of this Court. 7.. We have heard the learned counsel for the parties and perused the records. 8.. So far as the first question is concerned regarding maintainability of the revision is concerned, there cannot be any two opinion. Section 39 of the Act confers a revisional power on the Commissioner which says that the Commissioner either on his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (2) of section 38 wherein the proviso says that the dealer has an option instead of filing a second appeal under this sub-section, he can file a revision to the Commissioner under sub-section (1) of section 39 and where the dealer or person exercises such option, he shall be precluded from filing a second appeal. Therefore, the petitioner/assessee has an option either to file a revision or to file a second appeal and if he chooses to have a remedy of revision then filing of second appeal is precluded. Therefore, so far as the revision against the order under sub-section (3) of section 38 is concerned, the same is maintainable with restriction mentioned above. 9.. Now coming to the second question where the basic controversy lie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng into merit. The Division Bench of this Court in the case of Gulshan Rai Johar [1988] 71 STC 258, has observed: "There are two stages of an appeal contemplated by section 38 of the Madhya Pradesh General Sales Tax Act, 1958. The first is the stage of admission of the appeal and the second is that of hearing. The stage of hearing of an appeal arises only after it has been admitted. Therefore, if an appeal is not to be admitted for failure to deposit the tax as required under section 38(3) of the Act, the hearing contemplated at that stage would be in regard to the matter of deposit of tax only. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner to examine it on merit. In the case of Purshottamdas Mathuradas and Co. Pvt. Ltd. [1969] 23 STC 319 (MP), it was a case of dismissing the appeal in default. When the appeal was dismissed in default then it was observed that it can challenge the order on merits also. This has also been observed in the case of Gulshan Rai [1988] 71 STC 258 (MP) that if the appeal is dismissed in default at the final hearing then it would be presumed that various pleas raised by the appellant have been repelled and consequently, the scope of enquiry in second appeal preferred against the said dismissal would cover the merit of the case. In Purshottamdas Mathuradas [1969] 23 STC 319 (MP), as an appeal was filed before the Board of Revenue again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minary issues under section 30(2) or (3) can be raised for consideration at the time of hearing of the appeal and jurisdiction of the Appellate Assistant Commissioner is not limited to hear the appeal on merits of the assessment only. Therefore, this case also stands on different footings. 11.. However, so far as present case is concerned, as mentioned above, if the condition precedent for depositing the tax is not made then the appeal becomes incompetent and if the appeal is incompetent then revisional authority can examine whether order passed by lower authority is correct or not. If it concluded that the order of lower authority is not validly passed then it can set aside the order and remand the case back to the authorities to decid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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