TMI Blog1982 (2) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... peals before the Assistant Commissioner of Sales Tax on 8th May, 1975. After certain adjournments, the appeals were dismissed on 28th July, 1975, under rule 49 of the Orissa Sales Tax Rules for non-removal of defects. Against this summary rejection of the appeals, second appeals were filed by the assessee where exercise of power by the first appellate authority in rejecting the appeals was challenged for want of reasonable opportunity and merits of the appeals were canvassed. The Tribunal came to uphold the rejection of the first appeals by the Assistant Commissioner and further held that once the appeals had been summarily dismissed by the first appellate authority, the ambit of second appeals did not relate to examination of the merits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a first appeal under rule 49 of the Orissa Sales Tax Rules, a second appeal would lie to the Tribunal. Narasimham, C. J., relied upon a decision of the Supreme Court in the case of Mela Ram Sons v. Income-tax Commissioner [1956] 29 ITR 607 (SC); AIR 1956 SC 367, to hold that even when a first appeal was summarily dismissed, it amounted to an appellate order, and therefore, a second appeal lay. From both the decisions, we do not find any support for the contention advanced on behalf of the assessee that in second appeal before the Tribunal, the assessee would be entitled to raise contentions on merit of the matter. As already pointed out, the assessee's first appeal was thrown out as being barred by time. Though for purposes of preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 22 read with rule 53(4) ibid of going up in second appeal to the Board of Revenue; and when he does so go up, his appeal is not and cannot be restricted to the examination of the question whether the dismissal for default was proper or not. The dismissal in default cannot put the assessee in a worse position than if his appeal had been dismissed on merits, in which case he would have had a right of appeal to the Board of Revenue on the merits of his assessment................." These observations of the Madhya Pradesh High Court do somewhat support the petitioner's stand, but we do not see any justification to discard the view in Natabar Sahoo's case (printed at page 194 infra) and adopt the rule of the Madhya Pradesh case ([1969] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second appeal? (3) Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, was required under the law to decide the appeal on merit, i.e., on the point of assessment and liability to pay enhanced tax irrespective of the fact that the first appeal was dismissed summarily on the point of limitation?" 2.. The assessee is a grocer carrying on business within the town of Cuttack. For the assessment year 1966-67, the accounts of the assessee were rejected and a best judgment assessment was entered. The assessee preferred a first appeal challenging the additional demand of Rs. 170.31. In the memorandum of appeal, the assessee declared that he had received the order of assessment on 20th February, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yat for the assessee also does not dispute that the first appellate authority under the Act has no power to condone delay in filing of the appeal though according to him the first appellate authority had been given such a power under the parent Act and while making certain amendments to section 23, by oversight the corresponding provision empowering the first appellate authority to condone delay in preferring of appeals has been omitted from the statute. According to Mr. Pasayat even though the first appeal had been dismissed on the ground of limitation and merits of the case had not been examined, since the summary dismissal of the first appeal on the ground of limitation amounted to a decision in the appeal, a second appeal on all counts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other it would give a premium to the defaulting assessee. All the three questions which have been referred to us can be conveniently put into one. We would accordingly reframe the question thus: "Whether, in the facts and circumstances of the case, the Member, Additional Sales Tax Tribunal, was justified in law in confining the consideration in second appeal to the question of dismissal of the first appeal on ground of limitation or was he entitled, and therefore, was required to examine the matter on merits?" Our answer to the question as reframed by us must be against the assessee, i.e.: In the facts and circumstances of the case, the Member, Additional Sales Tax Tribunal, was justified in law in confining the consideration in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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