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TMI Blog1966 (7) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... any deduction under section 2(j)(a)(ii) in respect of sales purported to have been effected to registered dealers of goods. He was also directed to pay a penalty of Rs. 898. The petitioner presented an appeal to the Assistant Commissioner of Sales Tax, Eastern Division, Nagpur. This appeal was dismissed. The petitioner then filed a second appeal before the Deputy Commissioner of Sales Tax, Eastern Division, Nagpur. By a preliminary order, the Deputy Commissioner of Sales Tax called upon the petitioner to pay a part of the tax by a particular date. The same was not paid, with the result that the Deputy Commissioner of Sales Tax rejected the appeal summarily in terms of rule 55 framed under the Act, on 13th May, 1964. The petitioner then pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) of section 22 or has been made the subject of a revision to the Tribunal; or (3) the order has been made more than one year previously. Sub-section (2) of section 22-A enables the Commissioner to call for the record of the proceedings of a case on an application by a dealer for revision of an order made under the Act, and gives him the like powers of making enquiry and passing such orders as he may deem necessary. The qualifications are the same as under sub-section (1) of section 22-A. So far as the proviso is concerned which creates the exception, it is clear that no revision could be entertained by the Commissioner only where either an appeal is pending or the time for filing the appeal has not expired or that it is already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f merger of the decree of the trial court in the order of the appellate court. This Court in Hussain Sab v. SitaramI.L.R. (1953) Bom. 309. , and the Patna High Court in Batuk Prasad Singh v. Ambica Prasad Singh(1932) I.L.R. 11 Pat. 409., have gone to the length of holding that, even when an appeal is dismissed under Order 41, rule 11, as the decree of the lower court is untouched, it is the lower court which is entitled to amend the decree. It is not necessary for us to go to that length, but it is sufficient to say, as was said in Phaltan Bank v. BaburaoA.I.R. 1954 Bom. 43., that "where an appeal is rejected on the ground that proper court-fees have not been paid, the appeal virtually has not come before the court of appeal for disposal on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal summarily. Such rejection of a memorandum of appeal either for non-payment of court-fees or for non-compliance with any other requisition under the rules, cannot have any other effect than a rejection of a memorandum of appeal under the Civil Procedure Code. In our view, therefore, mere summary rejection of the appeal cannot mean that the appeal should be deemed to be heard on merits before. No doubt, an indirect effect of such rejection is that the order of the subordinate authority is left intact, but that is far from saying that the order is confirmed on merits. In this conclusion, we find support in the decision of the Mysore High Court under the Income-tax Act in Krishna Flour Mills v. Income-tax Commissioner[1965] 55 I.T.R. 259; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed as barred by time amounted to a decision under section 31 against which an appeal could lie under section 33 and the Supreme Court interpreting the provisions of section 33 somewhat liberally held that when the Assistant Commissioner refused to entertain the appeal, the effect of the order was that he confirmed the original order. This decision cannot be pressed into service for determining the scope of a revision application when the question is only whether the order of the first appellate authority merges in the order of the second appellate authority. It is possible to say that for the purpose of an appeal, refusal to entertain the appeal on the ground that it is barred by limitation virtually amounts to a confirmation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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