Back
IN THE HIGH COURT OF BOMBAY
B. P. Saraf, D. K. Trivedi, JJ.
BHARAT INDUSTRIES
Versus
STATE OF MAHARASHTRA.
Sales Tax Reference No. 10 of 1992 in Reference Application No. 15 of 1991
Decided On: Decided On : 17-02-1995
APPEAL - SUMMARY REJECTION - GROUNDS OF APPEAL - AMENDMENT - REASONABLE OPPORTUNITY - BOMBAY SALES TAX ACT, 1959 - BOMBAY SALES TAX RULES, 1959 - RULE 60 - RULE 58 - FORM 37 - WHETHER AN APPEAL CAN BE SUMMARILY REJECTED FOR FAILURE TO SET OUT THE GROUNDS OF APPEAL IN ITS MEMORANDUM OF APPEAL WITHOUT GIVING AN OPPORTUNITY TO THE APPELLANT TO AMEND THE MEMORANDUM OF APPEAL.
Fact of the Case:
The assessee filed an appeal before the Deputy Commissioner of Sales Tax (Appeal-Mofussil), Nagpur, against a revisional order passed by the Assistant Commissioner of Sales Tax (Admn.), Nasik Division, Range II, Dhule, under section 57 of the Bombay Sales Tax Act, 1959. The Deputy Commissioner issued a notice to the assessee pointing out that the memorandum of appeal was incomplete as it did not bear the prescribed court-fee stamp, did not have a certified copy of the assessment/appeal/order appealed against, and did not have proof of payment of dues. The assessee rectified these defects but the Deputy Commissioner rejected the appeal as "not tenable" because it did not contain any grounds of appeal in column 7 of the prescribed form (form No. 37). The assessee appealed to the Maharashtra Sales Tax Tribunal, which dismissed the appeal, following an earlier decision of its Special Bench holding that the grounds of appeal did not constitute particulars envisaged under rule 58 of the Bombay Sales Tax Rules, 1959.
Finding of the Court:
The court held that an appeal cannot be summarily rejected for failure of the appellant to set out the grounds of appeal in its memorandum of appeal or for any other defect or omission without giving a reasonable opportunity to the appellant to amend the memorandum of appeal and to rectify the defects or fill up the omissions. This can be done at any time. It has nothing to do with the period of limitation for filing the appeal.
Issues: Whether the Tribunal was justified in law in holding that a memorandum of appeal not containing any grounds of appeal is not an appeal in the eye of law and hence question of giving reasonable opportunity for amendment of the memorandum of appeal by furnishing the grounds of appeal did not arise.
Ratio Decidendi: The court held that the period of limitation applies only to the filing of appeal. If the appeal is filed within time, omission to furnish any of the particulars or informations required under the rules or under the form may be rectified by the appellant at any time thereafter. If the appellate authority finds out any such omission, it is incumbent on its part to give an opportunity to the appellant to amend the memorandum of appeal to supply the omissions or to rectify the defects. It is only on the failure of the appellant to do so, despite opportunity being given for that purpose, that the appellate authority gets the power to reject the appeal summarily. Summary rejection of appeal for any defect or omission in the memorandum of appeal without giving an opportunity is specifically prohibited by the proviso to sub-rules (1) and (2) of rule 60. Even otherwise, it would have been obligatory on the part of the appellate authority to give such an opportunity before summarily rejecting the appeal to meet the requirements of principles of natural justice. Rejection of appeal without giving such an opportunity would be violative of principles of natural justice.
Final Decision: The court answered the question referred to it in the negative and in favor of the assessee.
The judgment of the Court was delivered by
DR. B. P. SARAF, J. - By this reference under section 61(1) of the Bombay Sales Tax Act, 1959, the Maharashtra Sales Tax Tribunal has referred the following question of law to this Court for opinion at the instance of the assessee :
"Whether, the Tribunal was justified in law in holding that there is no question of giving any reasonable opportunity for the amendment of the memorandum of appeal by furnishing the grounds of appeal as envisaged under rule 60(1) read with rule 58 of the Bombay Sales Tax Rules, 1959, as a memorandum of appeal not containing any grounds of appeal filed under section 55 of the Bombay Sales Tax Act, 1959, is not an appeal in the eye of law ?"
2. As is obvious from the above question, the sole controversy in this case pertains to the right of the assessee to amend the memorandum of appeal by furnishing the grounds of appeal and/or the right of the appellate authority to summarily reject an appeal under rule 60(1) of the Bombay Sales Tax Rules, 1959 ("the Rules"), for the failure of the appellant to set out the grounds of appeal in the memorandum of appeal filed under section 55 of the Act. The facts giving rise to this controversy may be briefly stated thus :
The assessee filed an appeal under section 55 of the Bombay Sales Tax Act, 1959 ("the Act"), before the Deputy Commissioner of Sales Tax (Appeal-Mofussil), Nagpur ("the Deputy Commissioner") on April 4, 1989, against a revisional order passed by the Assistant Commissioner of Sales Tax (Admn.), Nasik Division, Range II, Dhule, under section 57 of the Act. The Deputy Commissioner issued a notice to the assessee on July 11, 1989, wherein it was pointed out that the memorandum of appeal filed by him was incomplete in the following respects :
"(i) the memorandum of appeal does not bear the court-fee stamp of the prescribed denomination, i.e., of Rs. 2.50. It is short by the court-fee stamp of Rs. 2.50.
(ii) Court-fee of the denomination of Re. 1 is not affixed on the certified copy/copies of assessment/appeal/any other order appealed against.
(iii) The proof of payment or dues as per demand notice/appeal order is not attached."
By the above notice, the assessee was called upon to appear before him on the date specified thereunder when the matter of admitting the appeal would be decided. In pursuance of the above notice, the assessee appeared before the Deputy Commissioner at Nasik on November 17, 1989, while he was holding camp at Nasik and removed all the defects specified in the above notice. The Deputy Commissioner at that stage pointed out to the advocate for the assessee that the appeal petition filed by the assessee was not tenable as it was without any grounds. It was brought to the notice of the counsel that column No. 7 in the memorandum of appeal had been left completely blank and no grounds had been set out in the said column. He, therefore, held the appeal to be not tenable and hence rejected the same as "not tenable". Against the above order rejecting the appeal in limine as "not tenable" on the ground of failure of the assessee to set out the grounds of appeal in the memorandum of appeal against column 7 of the prescribed form (form No. 37), the assessee appealed to the Maharashtra Sales Tax Tribunal ("the Tribunal"). Before the Tribunal, it was contended by the counsel for the assessee that the omission to mention the grounds of appeal in the memorandum of appeal was not brought to the knowledge of the assessee by the Deputy Commissioner in his notice issued on July 11, 1989, to enable him to rectify the same. The case of the assessee was that had it been pointed out, it could have also been rectified immediately. The rejection of the appeal on that ground without giving any opportunity to the assessee to rectify the omission, according to the assessee, was wholly illegal and without jurisdiction. The case of the Revenue before the Tribunal, on the other hand, was that failure to fill u
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
