TaxTMI 
TaxTMI 
1987 (6) TMI 377
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....asons, with the correctness of which we are not concerned here. 3.. The assessee filed separate appeals against these orders of assessment under section 34(1) of the Act before the Deputy Commissioner of Sales Tax (Appeals), Ernakulam, he being an Appellate Assistant Commissioner as defined in section 2(i). The assessing authority appears to have reported to the Deputy Commissioner that the assessee had not paid in full the tax admitted to be due as per the returns filed by them. The Deputy Commissioner was therefore of the view that the appeals were liable to be summarily rejected under the second proviso to section 34(1), which reads: "Provided further that in the case of an order under sub-section (2) or subsection (3) of section 17, sub-section (1), sub-section (2) or sub-section (3) of section 18 or sub-section (1) or sub-section (2) of section 19, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax or other amounts admitted by the appellant to be due or of such instalment thereof as might have become payable, as the case may be." He issued a notice dated March 28, 1984, pointing out the report....
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.... with the appeal petition would not ordinarily be an order passed under section 34(3) of the Act and so the Tribunal would have no jurisdiction over an appeal against such an order of the first appellate authority. The Additional Deputy Commissioner (Appeals) has expressly specified in his order that the appeal petitions against the assessments for 1979-80 to 1982-83 are rejected as not maintainable under the second proviso to section 34(1) of the Kerala General Sales Tax Act, 1963. Section 39(1) provides for an appeal before the Tribunal against the order of the Appellate Assistant Commissioner under sub-section (3) of section 34 only as expressly specified under the section." The assessee is in revision before us against this common order. 7. We may at this point make reference to four original petitions filed by the assessee under article 226 of the Constitution to call for the records relating to the order of the Deputy Commissioner referred to in paragraph 4 herein above, and to quash the same as illegal, and to direct the Deputy Commissioner to consider the appeals filed before him on merits. These original petitions were also heard along with the tax revision ca....
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....ich he is entitled to set-off or adjust against the demand in question [Vijaya Oil Mills v. State of Kerala [1980] 45 STC 463 (Ker); 1979 KLT 250 and Rajagiri Rubber & Produce Co. Ltd. v. Additional Sales Tax Officer [1983] 53 STC 370 (Ker); 1983 KLT 475], or maybe, he can contend having regard to subsequent events or decisions of superior courts, that certain amounts which had been included in the returns as taxable were nevertheless exempt from levy, or liable to tax at reduced rates. Various situations like this can be visualised, which an assessee may be able to put forward in alleviation of the non-payment of amounts "admitted" by him to be due. These are not matters which will be apparent from a perusal of the records. The first appellate authority will be able to ascertain the facts and determine whether any admitted amount remains unpaid only after affording an opportunity to the assessee-appellant to put forward his case. The assessee has to be apprised of the proposal to reject the appeal for non-compliance with the second proviso to section 34(1), his objections called for, and the assessee heard before any order refusing to entertain the appeal is passed. An oral or per....
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....s, therefore, an appeal even though its consideration on merits is precluded by reason of non-compliance with the second proviso to section 34(1). As held by the Supreme Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner [1968] 21 STC 154 the direction in the proviso is that the Appellate Assistant Commissioner shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of payment of the admitted tax. What is barred, therefore, is the consideration of the appeal on merits. An appeal so filed and which is an appeal in the eye of law, has necessarily to be disposed of. The provision relating to disposal of an appeal is that contained in section 34(3). Any disposal of the appeal, whether on merits or on preliminary grounds like limitation, non-payment of admitted tax, irregularity in filing it or otherwise has necessarily to be referred to section 34(3). Any such order is therefore first an order on the appeal and second, one under section 34(3). It is therefore appealable under section 39. 12.. The matter can be viewed from another angle also. The order of rejection of the appeal for non-compliance with the second pro....
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....whose appeal was dismissed as time-barred, filed an appeal against that order before the Appellate Tribunal under section 33. A preliminary objection was raised that the order passed by the Appellate Assistant Commissioner was one under section 30(2) and not under section 31 and hence it was not appealable to the Tribunal under section 33. The High Court accepted this contention; the assessee went up in appeal to the Supreme Court. The matter was dealt with exhaustively by the Supreme Court with reference to the provisions of the Act and various decided cases on the point. Inter alia, the court accepted the various decisions relied on by the assessee and held that to fall within the ambit of section 31, it was not necessary that the order should expressly address itself to, and decide on the merits of the assessment, and that it was sufficient that the effect of the order was to confirm the assessment, as when the appeal is dismissed on a preliminary point. The following observations of Justice Satyanarayana Rao in Commissioner of Income-tax v. Shahzadi Begum AIR 1952 Mad. 232 were approved in this context: "If the appeal is dismissed as incompetent or is rejected as it was file....
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....ion 30(1) of the Income-tax Act, 1922. As pointed out earlier section 30 of the said Act conferred a right of appeal against various orders passed under the Act. An appeal against an order imposing penalty did not however lie unless the tax had been paid because of the proviso to the section which was in these terms: "Provided that no appeal shall lie against an order under sub-section (1) of section 46 unless the tax has been paid." The proviso and the right of second appeal have been the subject of consideration in the decisions to which we shall refer. 19, We may first refer to the decision in Commissioner of Income-tax v. Filmistan Ltd. [1961] 42 ITR 163, where the Supreme Court, dealing with the above proviso, observed: "The meaning of the words 'no appeal shall lie' in the first proviso to section 30(1) of the Income-tax Act is not that no memorandum of appeal can be presented. All that the proviso means is that the appeal will not be held to be properly filed until the tax has been paid. If, for instance, the memorandum of appeal is filed on the 20th day, i.e., 10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the....