This is a revision against the order of the Dy. Commissioner Sales Tax (Appeals), Kota dated 26.4.60 originally preferred to the Commissioner of Sales Tax, Rajasthan under sec. 14 (2) Rajasthan Sales Tax Act, 1954, but transferred to the Board as a result of the enforce-of the Rajasthan Sales Tax (Third Amendment) Act 1959.

We have heard the learned counsel for the parties and examined the record. Sec. 13(1) of the Act providing for appeals against the order of assessment etc. had originally a proviso that "No appeal shall be entertained under this section unless it is accompanied by a satisfactory proof of the payment of the tax in respect of which the appeal had been preferred. Another proviso has been added therein vide Sec. 8 of the Rajasthan Act No. 15 of 1959 that "the appellate authority may, if it deems fit, for reasons to be recorded in writing, entertain an appeal without payment of the amount of such tax or on proof of payment of such smaller amount, as it may direct". The learned Dy. Commissioner (Appeals) has dismissed the appeal with observation "Shri Nathu Lal Jain counsel for the appellant (non applicant before us) was heard. He has not submitted the receipt of Rs. 1191/59 nP- plus Rs. 50/- uptil today. The appeal is therefore rejected".

The learned counsel for the applicant Shri N. L. Jain does not question the competency of the learned Dy. Commissioner (Appeals) to reject the appeal for non-payment of the tax. "What he only contends is that the learned Dy. Commissioner had allowed him to deposit only Rs. 1191.59 nP. plus Rs. 50/- instead of the full amount, and that the learned Assistant Commissioner Sales Tax had therefore granted him the facility of paying by instalments, and that therefore the learned Dy. Commissioner (Appeals) should have waited for the payment of the amount and not heard the appeal untill the amount was so paid. He has also produced the order addressed by the Dy. Commissioner to the Asstt. Commissioner to this effect. The only point for determination in this revision, therefore, is whether the appellate authority having given leave to pay only a part of the impugned tax, it should be paid off before the date fixed for the hearing of the appeal, and whether in the absence of a satisfactory proof of such a payment, the appeal could be rejected summarily. It cannot also be lost sight of in this case in this connection that the impugned order has been passed after giving a hearing to the counsel of the applicant, and he did not raise the point he has been raising now that the Asstt. Commissioner sales Tax had allowed him to pay by instalments and therefore the appeal should have been kept pending untill all the instalments had been paid. There would have been some case in favour of the applicant if he raised this point before the appellate authority and prayed for adjournment or time on this ground. Under the circumstance, the learned appellate authority, could have entertained the appeal only on payment of the impugned tax or the part thereof as reduced by it under the proviso inserted by S. 8 of the Rajasthan Act No. 15 of 1939, but not otherwise. When, as has been so clearly observed in the impugned order, neither the amount was found to have been pa d nor any objection raised against it at the time of hearing, the only order that could be passed by the learned Dy. Commissioner (Appeals) the appellate authority in view of the original proviso read with the proviso inserted vide S. 8 of the Rajasthan Act No. 15 of 1959, could be that of rejecting the appeal. No appeal could be entertained under S. 13(1) of the Act without payment of the Tax impugned by the appellant or such part thereof as be fixed by the appellate authority for reasons to be recorded in writing. The learned Dy. Commissioner (Appeals) cannot therefore be called to have committed any illegality or irregularity in the exercise of its jurisdiction or any excess or failure of such a jurisdiction. Nor is there any other provision

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