TMI Blog1979 (12) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the dismissal of the appeal by the first appellate authority on 22nd January, 1968, was proper, having regard to the fact that the amount directed to be deposited was paid by that time though it was paid after the time allowed for payment by the said authority." 2.. The facts briefly stated are that the period of assessment is from 1st November, 1959, to 26th. October, 1960. The assessee was assessed to tax under the Madhya Pradesh General Sales Tax Act, 1958, at Rs. 14,445. The assessee had paid Rs. 841 along with the return. The assessee filed an appeal against the order of assessment before the Appellate Assistant Commissioner on 20th October, 1962. On an application made by the assessee, the Appellate Assistant Commissioner dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal has been preferred, has been 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. (4) Every first or second appeal shall be filed within thirty days from the date of communication of the order against which the appeal is to be filed." A reference is also necessary to rule 58, which, as then in force, was as follows: "58. Summary rejection.-(1) If the memorandum of appeal or application for revision does not comply with all or any of the requirements of rule 57 or the appellant fails to pay the tax wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal was filed within the period of limitation on 20th October, 1962, it could not be rejected as barred by limitation simply on the ground that the amount of tax had not been deposited by the assessee. Section 38(3) and the proviso to it use the words "admitted" and "entertain" respectively. These words in contrast to the word "file" mean the stage when the appeal comes up for consideration before the court: Lakshmiratan Engineering Works v. Assistant Commissioner[1968] 21 S.T.C. 154 (S.C.); A.I.R. 1968 S.C. 488. The appellate authority is directed not to admit the appeal unless the tax with penalty in respect of which the appeal has been preferred has been paid. This prohibition is subject to the discretion conferred on the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of tax assessed is deposited before or along with the appeal memo". This in our opinion is a complete misreading of section 38. The appellate authority cannot certainly direct admission or entertainment of an appeal unless one-third amount of the tax is deposited because it has no discretion under the proviso to relax the condition of deposit of tax below one-third of the amount of tax. But the proviso does not say that onethird amount of the tax must be deposited before or along with the memo of appeal or even within the period of limitation allowed for filing of the appeal. The condition of deposit of tax is to be complied with before the appeal is taken up for admission or entertainment. This stage as noticed earlier is subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted and thereby further postponing the consideration of admission or entertainment of appeal. In our opinion, this power of postponing consideration of appeal is not restricted to those cases where the amount of tax required to be deposited is above one-third. It also applies where the amount of tax required to be deposited is reduced to one-third. The appellate authority should consider the question of compliance with the condition of deposit of tax on the date when it last takes up the appeal for consideration of admission. In the instant case, the Appellate Assistant Commissioner granted time up to 30th November, 1962, for depositing one-third of the amount of tax. The assessee deposited that amount after expiry of that period on 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaining to the right of appeal should be given a liberal construction in favour of the right since they are remedial and the right should not be restricted or denied unless such a construction is unavoidable and in case of doubt the same should be resolved in favour of the right of appeal. We are in respectful agreement with these observations. We will also mention the decisions of the Supreme Court in Lakshmiratan Engineering Works v. Assistant Commissioner[1968] 21 S.T.C. 154 (S.C.); A.I.R. 1968 S.C. 488., Lalta Prasad Khinni Lal v. Assistant Commissioner[1972] 29 S.T.C. 201 (S.C.); A.I.R. 1972 S.C. 401. and Kanpur Vanaspati Stores v. Commissioner of Sales Tax[1973] 32 S.T.C. 655 (S.C.); A.I.R. 1973 S.C. 2373. , where it has been held wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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