Summary dismissal of first appeal still supports second appeal rights and merits review under sales tax law.

A summary rejection of a first appeal under rule 49 is treated as a dismissal of an appeal for purposes of the statutory right of second appeal under section 23(2) of the Orissa Sales Tax Act. On that basis, the second appeal remains maintainable before the Tribunal, which then has full jurisdiction to examine both facts and law under section 23. Where the Tribunal has not considered the appeals on merits, the matter must be reconsidered in accordance with law.

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Issues: Whether a second appeal lies on merits under the Orissa Sales Tax Act when the connected first appeal was summarily rejected under rule 49 of the Orissa Sales Tax Rules, 1947.

Analysis: The question was answered by applying the earlier binding view that a summary dismissal of a first appeal is nevertheless a dismissal of an appeal for the purpose of section 23(2) of the Orissa Sales Tax Act. On that basis, a second appeal before the Tribunal is maintainable and, once maintainable, the Tribunal has full power to examine both facts and law under section 23. As the Tribunal had not considered the appeals on merits, the matter required reconsideration in accordance with law.

Conclusion: The second appeals were held to lie on merits, and the reference was answered in favour of the assessee-petitioner and against the department.

Ratio Decidendi: A summary dismissal of a first appeal amounts to dismissal of an appeal for the purpose of the statutory right of second appeal, and the appellate forum may then decide the matter on merits.

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