TaxTMI 
TaxTMI 
1990 (7) TMI 356
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....Commissioner could not be rejected on account of non-payment of 50 per cent of the total demand of tax and penalty and it be heard on merits on payment of 10 per cent of additional demand and 50 per cent of the penalty." 2.. After rejecting the account books for the assessment period November 4, 1975 to October 23, 1976, the assessee was subjected to best judgment assessment, which resulted in increasing the tax demand to the tune of Rs. 1,01,840 and imposition of penalty of Rs. 50,000 under section 43(1) of the Act, read with section 9 of the Central Sales Tax Act, 1956, besides imposition of further penalty of Rs. 2,355 under other provisions of the Act. The assessee preferred an appeal before the Appellate Deputy Commissioner of Sales....
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.... Accordingly the case was remitted back to the Appellate Deputy Commissioner of Sales Tax for deciding the appeal on merits. Being aggrieved the department applied for a reference. The application was allowed and the aforesaid question of law was referred to us by the Tribunal. 3.. In Commissioner of Sales Tax v. Balaji Cotton Co. reported in [1990] 76 STC 53; (1988) 21 VKN 327, a similar question of law was decided by this Court in favour of the department and against the assessee. We see no reason to take a contrary view. However, the facts in the present case are a bit distinguishable. The assessee had, no doubt, preferred an appeal before the Appellate Deputy Commissioner of Sales Tax after depositing 10 per cent of the extra tax dem....
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.... a deposit as per requirement of sub-section (3) thereof. The bar is against admission of the appeal for hearing. Accordingly if an assessee does not deposit the requisite amount on or before the date of filing the appeal, but subsequently deposits the amount before the appeal is being taken up for admission, the appeal cannot be dismissed summarily on account of non-compliance with the provisions of sub-section (3) of section 38 of the Act. In the present case, the assessee had initially deposited 10 per cent of the extra tax demand and 50 per cent of the amount of penalty. By making further deposit of Rs. 83,500 after the date of service of show cause notice dated August 27, 1979, it had made up the deficiency towards 50 per cent of the e....
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.... accompanied by an authenticated copy of the impugned order. In the light of these provisions, it may be argued that the payment of the amount of tax with penalty in accordance with section 38(3) of the Act was required to be made at the time of filing the appeal. However, as the rules cannot have an overriding effect over the statutory provisions of section 38(3) of the Act and as a copy of the challan in proof of the payment of the amount of tax with penalty in accordance with the provisions of section 38(3) of the Act, as understood by the assessee, was admittedly filed by the assessee along with its memo of appeal, the view we are taking in this case does not appear illogical or unreasonable. 6.. For the foregoing reasons, the reform....