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TMI Blog1985 (12) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances of the case, the Tribunal was justified in holding that the appeal was considered for admission by the Deputy Commissioner on 30th April, 1982, and his summary dismissal of the appeal on 30th June, 1982, was in order? (2) Whether, under the facts and circumstances of the case, the Tribunal was justified in holding that the payment of sums due under section 38(3) of the M.P. General Sales Tax Act, 1958, was to be made with the memorandum of appeal and in absence, therefore, the appeal could be summarily rejected?" 3.. The material facts giving rise to these references briefly, are as follows: The assessee was assessed to sales tax and to entry tax under the State Act and the Central Act by the Sales Tax Officer, Jhabua, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls before the Tribunal. The Tribunal upheld the orders of dismissal. Hence, at the instance of the assessee, the aforesaid two questions of law have been referred to us for our opinion. 4.. Shri Chaphekar, the learned counsel for the assessee, contended that under the provisions of section 38(3) of the Act, the appellate authority was directed not to admit the appeals unless the tax with penalty in respect of which the appeals had been filed, had been paid; that non-compliance with the provisions of rules 57 and 58 could not result in automatic dismissal of the appeals, that the appeals were heard on 28th June, 1982, on the question of admission and that as the assessee had by that time paid the required tax and produced challans in proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Kanpur Range, Kanpur [1968] 21 STC 154 (SC); AIR 1968 SC 488, the words "admit" and "entertain" in contrast to the word "file" refer to the stage when the appeal comes for consideration. A Division Bench of this Court has held in Babulal Mohanlal Kandele v. Commissioner of Sales Tax, M.P. [1981] 47 STC 164; 1980 MPLJ 504 that 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, it was only on 28th June, 1982, that the appellate authority heard the assessee on the question of admission and it is common ground that before that date, the assessee had complied with the requirement of payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal or application or revision under this sub-rule is passed, the appellant or applicant shall be given a reasonable opportunity of being heard. (3) Where an appeal is summarily rejected under sub-rule (1) on the ground that the appellant had failed to pay in accordance with the provisions of subsection (3) of section 38, the amount of tax and/or penalty in respect of which the appeal has been preferred, the appellate authority may, where it is subsequently brought to its notice that the said amount was paid before filing the memorandum of appeal but the proof of payment was not furnished therewith, readmit the appeal." From a perusal of sub-rule (1) of rule 58, it is clear that the appellate authority is not competent to summarily reje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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