Bishambhar Dayal, C.J.
1. This is a reference under Section 44 of the M. P. General Sales Tax Act at the instance of the assessee. The Sales Tax Officer assessed certain amount of tax and penalty on the assessee. The assessee preferred an appeal before the Appellate Assistant Commissioner of Sales Tax on 8th May, 1964. Along with the memorandum of appeal it did not deposit the amount of tax and penalty that was imposed on it. But a direction was given to the assessee by the Appellate Assistant Commissioner to deposit one-third amount, the original figure being Rs. 150. It was subsequently corrected and the amount was to be deposited by 31st July, 1965. This time was later on extended to 6th September, 1965. However, the amount was not deposited within that time, but it was actually deposited on 5th September, 1966. In the meanwhile, the appeal was not taken up for orders. The order was passed on 9th November, 1967. By that order the appeal was dismissed as the one-third amount of tax and penalty was not deposited within time. Against the order of the Appellate Assistant Commissioner a second appeal was preferred before the Board of Revenue and the Board of Revenue by its order dated 18th February, 1969, after reviewing some of the facts, came to the conclusion that the one-third amount, not having been deposited, the appeal could not be taken to have been properly filed till 5th September, 1966, when the one-third amount was actually deposited. According to the Board of Revenue, a proper appeal could be deemed to have been filed only on 5th September, 1966. It was much beyond time from the date when the notice of the decision by the Sales Tax Officer had been served on the assessee. On that question of limitation alone, the second appeal was dismissed. An application was then made for making a reference to this court under Section 44(1) of the M. P. General Sales Tax Act. On that application by the assessee the following five questions have been referred to this court for answer :
(1) Whether in the facts and circumstances of the case, for purposes of limitation, the appeal filed before the first appellate authority has to be treated as being filed only on 6th September, 1966, when the one-third amount of tax and penalty was deposited, or whether the appeal will be treated as being filed on 8th May, 1964, when it was presented ;
(2) If the answer to the first question is that for purposes of limitation, the appeal has to be treated as filed on 8th May, 1964, whether in the facts and circumstances of the case, the first appellate authority having directed that one-third amount of the tax and penalty shall be. paid by 6th September, 1965, it was entirely in the discretion of the said authority to have admitted the appeal for hearing on merits, even though the one-third amount was paid after the expiry of the time-limit granted by the first appellate authority, but before the said authority passed its order in appeal (sic) ;
(3) If the one-third amount is not paid before the time-limit granted by the appellate authority, whether in the facts and circumstances of the case, the said authority is bound to give an opportunity to the appellant under the proviso of Rule 58(1), that is to say, whether the opportunity to bring the memorandum of appeal or application for revision into conformity with the requirements of Rule 57 has no reference to the requirement of one-third amount of tax and penalty, since payment of one-third amount was not a matter mentioned in Rule 57 as the rule stood at the relevant period (sic); and
(4) Whether in the facts and circumstances of the case, having issued a show-cause notice to the appellant, the first appellate authority was justified in its reasons for rejecting the appeal summarily ;
(5) Whether in the facts and circumstances of the case, the appellate authority is bound to admit the appeal for hearing if the one-third amount is not paid with the filing of appeal memo, nor by the time-limit given by the appellate authority, but it is paid before the appellate authority passed an order in appeal.
2. After hearing learned counsel for both the parties we have come to the conclusion that the only question which arises out of the order of the Board of Revenue is question No. (1). The Board of Revenue has not applied its mind and has not decided any of the other questions and consequently, questions Nos. (2) to (5), not arising out of the order, could not be referred to this court. We will, therefore, deal with question No. (1) alone as under.
3. Under Section 38 of the M. P. General Sales Tax Act an assessee is entitled to file an appeal against an order of assessment. Sub-section (3) of Section 38 ran as follows:
No first or second appeal against an order of assessment, with or without penalty shall be admitted by the appellate authority unless the tax with penalty if any, in respect of which the appeal has been preferred, has been paid :
Provided that the said authority may, if it deems fit, for reasons to be recorded in writing, entertain an appeal against such order on payment of such smaller amount which shall not be less than one-third of the amount of the tax including penalty, if any, as it may direct.
From the language of this sub-section it will be seen that the deposit of the amount is not directed to be made along with the memorandum of appeal; nor is it made a condition of the filing of the memorandum of appeal before the appellate authority. In the main part of Sub-section (3) what has been said is that the appeal shall not be admitted in the absence of deposit and in the proviso, the appellate authority has been authorised to entertain an appeal on payment of a lesser amount which shall not be less than one-third. Both these phrases 'no appeal...shall be admitted' or 'may entertain' refer to a stage subsequent to the filing of the appeal. After an appeal is filed, it is only then the appellate authority would exercise its mind whether the appeal should be admitted or not or should be entertained or not. Thus, the making of the deposit affects the entertainment or admission of the appeal and not the filing of the appeal. Similarly, Rule 58 of the M. P. General Sales Tax Rules, 1959, gives a power to the appellate or revising authority to summarily reject an appeal or revision if the amount mentioned in Sub-section (3) of Section 38 is not deposited. This rule also refers to the appellate authority applying its mind to the entertainability of the appeal. It is, therefore, quite clear that the filing of an appeal takes place if a memorandum of appeal complying with the requirements of Rule 57 of the Rules has been filed and there is no dispute in this case that such a memorandum had been filed on 8th May, 1964, and it was within time.
4. Our answer, therefore, to question No. (1) is that on the facts and circumstances of the case, for purposes of limitation, the appeal filed before the first appellate authority has to be treated as being filed not on 6th September, 1966, when the one-third amount of tax and penalty was deposited, but the appeal will be treated as having been filed on 8th May, 1964, when it was presented.
5. The other questions relate to the entertainability of the appeal on account of the fact that the one-third amount was deposited after the date which was given by the Appellate Assistant Commissioner for making the deposit. Those questions could have been decided by the Board of Revenue after taking into consideration all the circumstances of the case. But, since the Board of Revenue has not adverted to those facts and has not decided either way whether the appellate authority could exercise discretion or had no discretion in the matter, it was incompetent to refer those questions to this court. It is for the Board of Revenue first to consider the relevant facts and to come to a decision and only then can those questions arise out of its order. We, therefore, decline to answer questions Nos. (2) to (5).
6. Our answer to question No. (1) as stated above in paragraph 4 will be sent to the Board of Revenue. Parties will bear their own costs of this reference.