T.P. Naik, J.
1. This is a reference at the instance of the assessee-dealer by the Board of Revenue, Madhya Pradesh, under Sub-section (1) of Section 44 of the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter called 'the Act'). The question referred to us is as follows :
Whether in the facts and in the circumstances of the case the Tribunal was justified in confining itself only to the examination in second appeal against the order of dismissal in default of the justification of that order or could also go into the merits of the case under Section 22 of the Central Provinces and Berar Sales Tax Act, 1947 ?
2. The facts giving rise to the reference may now briefly be stated. For the period 1st October, 1947, to 30th September, 1948, the assessee was assessed to sales tax by the Assistant Commissioner, Sales Tax, by his order dated 5th July, 1954.
The assessee went up in appeal under Sub-section (1) of Section 22 of Central Provinces and Berar Sales Tax Act, 1947, read with Rule 53 of the Rules made thereunder to the Deputy Commissioner of Sales Tax. On 23rd June, 1958, the date on which the appeal came up for hearing, the appellant-assessee was absent, though served with the notice of hearing for that date. The Deputy Commissioner, Sales Tax, therefore, dismissed the appeal in default under Rule 58-A of the Central Provinces and Berar Sales Tax Rules, 1947.
The assessee went up in second appeal to the Board of Revenue against the aforesaid order under Sub-section (1) of Section 22 of the Central Provinces and Berar Sales Tax Act, 1947. The learned Member of the Board of Revenue dismissed the appeal, inter alia, holding that the dismissal of the appeal on default of appearance of the appellant-assessee was justified and did not require any interference in appeal. He refused to go into the merits of the assessment.
3. The question, therefore, is whether, on a second appeal against the order dismissing the appeal in default under Rule 58-A of the Central Provinces and Berar 'Sales Tax Rules, 1947, the assessee is entitled to be heard on the merits of his assessment.
4. Under Section 22(1) of the Central Provinces and Berar Sales Tax Act, 1947,-
Any dealer aggrieved by an original order under this Act may, in the prescribed manner appeal to the prescribed authority against such order and any dealer aggrieved by an order passed in appeal under this Act may appeal to such authority as may be prescribed against the order passed by the first appellate authority.
Sub-section (4) of Section 22 then provides that-
Subject to such procedure as maybe prescribed and after such further enquiry as it may think fit, the appellate authority, in disposing of any appeal under Sub-section (1), may-
(a) confirm, reduce, enhance or annul the assessment, or
(b) set aside the assessment or penalty, or both, and direct the Commissioner or the person appointed under Section 3 to assist the Commissioner to make a fresh assessment after such further inquiry as may be directed, or
(c) in other cases, pass such orders as it may think fit.
Under Rule 53(2) and (4) of the Central Provinces and Berar Sales Tax Rules, 1947-
(2) An appeal against an original order passed by the Sales Tax Officer or the Assistant Sales Tax Officer, Non-residents' Circle, or by an Assistant Commissioner, shall lie to the Deputy Commissioner.
* * * *(4) A second appeal against an order passed in first appeal by the Deputy Commissioner shall lie to the Commissioner.
There is thus an unqualified right of appeal from every order passed in first appeal by the Deputy Commissioner.
5. Under Rule 58-A(1) and (2)-
(1) If on the day fixed for hearing the appeal, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing either personally or by a person specified in Sub-section (1) of Section 11-B, the appellate authority may make an order that the appeal be dismissed.
(2) When an appeal is dismissed under Sub-rule (1), the appellant may apply to the appellate authority for the re-admission of the appeal and, if the appellate authority is satisfied that the appellant or a person specified in Sub-section (1) of Section 11-B, was prevented by any sufficient cause from appearing when the appeal was called on for hearing, it may readmit the appeal upon such terms and conditions as it thinks fit.
6. When an appeal is dismissed in default, there is thus an additional right to get the appeal readmitted for hearing provided the assessee can satisfy the appellate authority that he was prevented by any sufficient cause for appearing when the appeal was called on for hearing.
7. But this additional right does not detract from the right which the assessee has under Sub-section (1) of Section 22 read with Rule 53(4) ibid of going up in second appeal to the Board of Revenue ; and when he does so go up, his appeal is not and cannot be restricted to the examination of the question whether the dismissal for default was proper or not. The dismissal in default cannot put the assessee in a worse position than if his appeal had been dismissed on merits, in which case he would have had a right of appeal to the Board of Revenue on the merits of his assessment. There is nothing in the Act or the Rules to warrant the inference that when an assessee goes up in second appeal on the dismissal of the first appeal for default, his right is restricted to challenging the dismissal for default only and that he cannot urge any contentions on merits subject to the limitations of the second appeal so provided. We are, therefore, of opinion that when an appellant goes up in second appeal on the dismissal of his first appeal for default, he is not only entitled to challenge the dismissal for default but also to challenge the assessment on merits.
8. We are accordingly of the opinion that in the facts and circumstances of the case the Tribunal was not justified in confining itself only to the examination in second appeal against the order of dismissal in default of the justification of that order but could also go into the merits of the case under Section 22 of the Central Provinces and Berar Sales Tax Act, 1947. Counsel's fee Rs. 50, if certified.