TaxTMI 
TaxTMI 
1979 (12) TMI 146
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....om 1st November, 1959, to 26th. October, 1960. The assessee was assessed to tax under the Madhya Pradesh General Sales Tax Act, 1958, at Rs. 14,445. The assessee had paid Rs. 841 along with the return. The assessee filed an appeal against the order of assessment before the Appellate Assistant Commissioner on 20th October, 1962. On an application made by the assessee, the Appellate Assistant Commissioner directed that a sum of Rs. 6,000 out of the tax assessed be paid by 30th November, 1962. The assessee deposited Rs. 1,000 on 29th November, 1962. He then deposited the balance amount of Rs. 5,000 on 15th March, 1965. On 8th January, 1968, a notice was issued by the Appellate Assistant Commissioner to the assessee as to why the appeal should not be summarily rejected on the ground that Rs. 6,000 as tax was not deposited within the time allowed. The assessee replied to this notice. He referred to the various circumstances because of which the amount of Rs. 6,000 could not be deposited before 30th November, 1962. The assessee also submitted that as the amount had already been deposited by 15th March, 1965, the appeal should not be dismissed simply because the amount was not deposited b....
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....ven a reasonable opportunity of being heard." 4.. A look at sub-sections (3) and (4) of section 38 will show that we have to make a distinction between filing of appeal and admission or entertainment of appeal. Section 38(4) says that every first or second appeal shall be filed within thirty days from the date of communication of the order against which the appeal is to be filed. The section does not provide that the tax or penalty against which an appeal is filed should also be deposited before or at the time of filing of the appeal. It is clear, therefore, that when the appeal was filed within the period of limitation on 20th October, 1962, it could not be rejected as barred by limitation simply on the ground that the amount of tax had not been deposited by the assessee. Section 38(3) and the proviso to it use the words "admitted" and "entertain" respectively. These words in contrast to the word "file" mean the stage when the appeal comes up for consideration before the court: Lakshmiratan Engineering Works v. Assistant Commissioner[1968] 21 S.T.C. 154 (S.C.); A.I.R. 1968 S.C. 488. The appellate authority is directed not to admit the appeal unless the tax with penalty in re....
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....iling of the appeal. So it is not correct to say that one-third of the tax must be paid before or along with the filing of the memo of appeal or within the period of thirty days allowed for filing of the appeal. The appeal is within limitation if it is filed within thirty days. The entire amount of the tax or such smaller amount up to one-third of the amount of tax must be deposited before the appeal can be admitted or entertained. Now when the appellate authority itself on an application made by the appellant grants time for deposit of one-third of the amount of tax, it means that the appellate authority does not take up the appeal for admission or entertainment on that date and will not take it up for that purpose before the expiry of the period allowed for depositing the tax. There is nothing to prevent the appellate authority in postponing the consideration of the appeal for admission or entertainment to enable the assessee-appellant to comply with the requirement of depositing the tax before the appeal is admitted or entertained. Indeed that power is implicit in the proviso which enables the appellate authority to reduce the amount of tax up to onethird for being deposited bef....
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....ferring to "Statutory Constructions" by Crawford (1940 edition, pages 392-393) observed that it is well-established that statutes pertaining to the right of appeal should be given a liberal construction in favour of the right since they are remedial and the right should not be restricted or denied unless such a construction is unavoidable and in case of doubt the same should be resolved in favour of the right of appeal. We are in respectful agreement with these observations. We will also mention the decisions of the Supreme Court in Lakshmiratan Engineering Works v. Assistant Commissioner[1968] 21 S.T.C. 154 (S.C.); A.I.R. 1968 S.C. 488., Lalta Prasad Khinni Lal v. Assistant Commissioner[1972] 29 S.T.C. 201 (S.C.); A.I.R. 1972 S.C. 401. and Kanpur Vanaspati Stores v. Commissioner of Sales Tax[1973] 32 S.T.C. 655 (S.C.); A.I.R. 1973 S.C. 2373. , where it has been held while construing section 9 of the U.P. Sales Tax Act, 1948, that an appeal under that section can be said to be properly filed only when tax admitted is paid. These decisions proceed on the requirement of the proviso to section 9 of the U.P. Act which requires that no appeal shall be entertained unless it is accompanie....