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TMI Blog1963 (3) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... first question is in the affirmative) whether the service of the tice of the hearing of the assessment case was validly made on the applicants?" The circumstances as stated in the statement of the case are as follows. An assessment order was passed ex parte under section 7(3) of the Sales Tax Act and it was served upon the assessee on 24th September, 1953. Admittedly the assessee had a right of appeal against it and admittedly the last day on which he could file an appeal was 24th October, 1953. It actually filed an appeal on 12th October, 1953, with a challan for payment of Rs. 442-10-9. It had admitted its liabi- lity for payment of the tax of Rs. 510-1-3 and thus it did t pay Rs. 67-6-6 out of the admitted tax. The office report on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the Judge (Appeals); rule 65(2) provides that "every appeal shall be preferred in the form of a memorandum, written on watermark or any other stout paper", and sub-rule (3) requires that "the memorandum of appeal shall be accompanied with a certified copy of the order appealed from and a spare copy of the memorandum." Sub-rule (1) of rule 66 provides for the contents of the memorandum of appeal and sub-rule (2) provides that it "shall be accompanied by a certified copy of the order appealed from and the challan showing deposit in the treasury of the tax admitted by the appellant to be due." Rule 67 requires that "the memorandum of appeal shall be presented by the appellant or his lawyer..... or may be sent by registered post." If it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived or acted upon but t an act. An appellate court entertains a memorandum of appeal but cant be said to entertain an act of appealing. It follows that what the proviso requires is that a memorandum of appeal must be accompanied by satisfactory proof of the payment. Admittedly the memorandum of appeal in the instant case was t accompanied by satisfactory proof of the payment of the amount of Rs. 67 and odd admitted to be the tax due from the assessee. Sub- sequently the assessee produced satisfactory proof of the payment of this amount also, but the memorandum of appeal had already been pre- sented earlier and it was impossible to speak of the proof furnished later as accompanying it. The proviso is fulfilled only when the memo- randum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was a tional return of the memorandum of appeal and its re-presentation along with the satisfactory proof of the payment when the satisfactory proof was furnished. A legal fiction is a creation of statute; it is t open to a Court to indulge in a legal fiction and certainly it is t open to it to indulge in one simply with the object of circumventing statutory provi- sion. When what is meant by the proviso is that satisfactory proof of the payment must go in company with a memorandum of appeal, it is t open to a Court to hold that satisfactory proof of payment which did t go in company with a memorandum of appeal must be deemed to have gone in company with it. This would amount to acting in flagrant defiance of the statute. Moreov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of payment. The argument comes to this that so long as the tax was t paid there was appeal (because appeal can lie unless the tax is paid) but the memorandum of appeal has been presented and on the payment of the tax an appeal came into existence. This line of reasoning is t open in a case govern- ed by section 9(1) of the Sales Tax Act which insists upon a memo- randum of appeal going in company with proof of the payment. We were also referred to Nagendra Nath v. SureshA.I.R. 1932 P.C. 165. It does t contain anything material in the present case; the judicial Committee simply interpreted "appeal" occurring in article 182(2) of the Limita- tion Act. The question before us is t whether there was an appeal or t, but whether the appeal had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended there and then. Consequently the effect of failure to furnish satisfactory proof of the payment simultaneously with a memorandum of appeal cant be equated with the effect of failure to comply with rules 65(3) and 66(2). What is meant by a memorandum being in order within the mean- ing of rule 67(2) is that it complies with all the requirements of law and t merely those contained in rules 65(3) and 67(1). That it is accompanied by a certified copy of the order appealed from and a chal- lan showing deposit in the treasury of the admitted tax is as much required to make it in order as other requirements. The Judge (Appeals) would have been bound to admit it only if it had been in order; as it was t, he could reject it under sub-rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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