TMI Blog1971 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee by the Appellate Assistant Commissioner to deposit one-third amount, the original figure being Rs. 150. It was subsequently corrected and the amount was to be deposited by 31st July, 1965. This time was later on extended to 6th September, 1965. However, the amount was not deposited within that time, but it was actually deposited on 5th September, 1966. In the meanwhile, the appeal was not taken up for orders. The order was passed on 9th November, 1967. By that order the appeal was dismissed as the one-third amount of tax and penalty was not deposited within time. Against the order of the Appellate Assistant Commissioner a second appeal was preferred before the Board of Revenue and the Board of Revenue by its order dated 18th Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion of the said authority to have admitted the appeal for hearing on merits, even though the one-third amount was paid after the expiry of the timelimit granted by the first appellate authority, but before the said authority passed its order in appeal (sic); (3) If the one-third amount is not paid before the timelimit granted by the appellate authority, whether in the facts and circumstances of the case, the said authority is bound to give an opportunity to the appellant under the proviso of rule 58(1), that is to say, whether the opportunity to bring the memorandum of appeal or application for revision into conformity with the requirements of rule 57 has no reference to the requirement of one-third amount of tax and penalty, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een paid: Provided that the said authority may, if it deems fit, for reasons to be recorded in writing, entertain an appeal against such order on payment of such smaller amount which shall not be less than one-third of the amount of the tax including penalty, if any, as it may direct." From the language of this sub-section it will be seen that the deposit of the amount is not directed to be made along with the memorandum of appeal; nor is it made a condition of the filing of the memorandum of appeal before the appellate authority. In the main part of sub-section (3) what has been said is that the appeal shall not be admitted in the absence of deposit and in the proviso, the appellate authority has been authorised to entertain an appeal on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5.. The other questions relate to the entertainability of the appeal on account of the fact that the one-third amount was deposited after the date which was given by the Appellate Assistant Commissioner for making the deposit. Those questions could have been decided by the Board of Revenue after taking into consideration all the circumstances of the case. But, since the Board of Revenue has not adverted to those facts and has not decided either way whether the appellate authority could exercise discretion or had no discretion in the matter, it was incompetent to refer those questions to this court. It is for the Board of Revenue first to consider the relevant facts and to come to a decision and only then can those questions arise out of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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