Section 61 in The M.P. Vanijyik Kar Adhiniyam, 1994
61. Appeal.
(1)Any dealer or person aggrieved by an order of assessment under Section 27 with or without penalty or to an order of reassessment under Section 28 or Section 29 with or without penalty passed in respect of him or to an order imposing penalty on him or relating to refund under Section 39 or any order passed under Section 71 may, in the prescribed manner, appeal against such order to the Appellate Deputy Commissioner of Commercial Tax :Provided that in a case where an application made under Section 72 is rejected such dealer or person may in the like manner appeal against the ex-parte order of assessment and in computing the period of limitation for filing the appeal, the period from the date of filing the application under Section 72 to the date of service of order rejecting such application shall be excluded.(2)Any dealer or person aggrieved by an order passed in appeal under sub-section (1) may, in the prescribed manner, appeal against such order to the [Appellate Board] [Substituted by M.P. Vanijyik Kar (Sanshodhan) Act, 2003 (32 of 2003) for the word 'Tribunal' w.e.f. 30-9-2003.] :Provided that the dealer or person may, at his option, instead of filing a second appeal under this sub-section, make an application for revision to the Commissioner under sub-section (1) of Section 62 and where the dealer or person exercises such option he shall be precluded from filing a second appeal under this sub-section.(3)Notwithstanding anything contained in the rules or the regulations framed by the [Appellate Board] [Substituted by M.P. Vanijyik Kar (Sanshodhan) Act, 2003 (32 of 2003) for the word 'Tribunal' w.e.f. 30-9-2003.] under any law for the time being in force or under the provisions of Section 4 any officer not below the rank of Deputy Commissioner duly authorised by the Commissioner in this behalf shall also have the right to be heard at the hearing of the appeal under sub-section (2).(4)No first [...] [The words 'or second' omitted by Section 10 of MP Commercial Tax (Second Amendment) Act, 1997 (No. 33 of 1997), w.e.f. 1-9-97.] appeal against an order of assessment, with or without penalty or against an order imposing penalty shall be admitted by the appellate authority unless out of the total balance due from the dealer-(a)where all the returns for the period to which the order appealed against relates have been filed and tax payable according to such returns has been paid, ten per cent of such balance;(b)where one or more of the returns for the period for which the order appealed against relates have not been filed and tax has not been paid or where such return or returns have been filed but tax has not been paid, such part of the balance which shall be equal to;(i)thirty three per cent, where the default relates to one quarter;(ii)fifty per cent, where the default relates to two quarters; and(iii)seventy five per cent, where the default relates to more than two quarters;(c)where a penalty under Section 69 has been imposed, fifty per cent of such balance;(d)where the order appealed against has been passed under Section 28 and a penalty has been imposed under the said Section, fifty percent of such balance; and(e)in any other case twenty five per cent of such balance;is paid and the memorandum of appeal is accompanied by a satisfactory proof of payment of such amount and thereupon the appellate authority shall stay the recovery of the balance of tax and/or penalty till the decision of appeal :Provided that where a dealer is covered by more than one of the aforesaid clauses, the provisions of the clause requiring the payment of the highest amount, shall apply to such dealer and the first or the second appeal shall be admitted only after he has paid such amount;[(4-A) No second appeal shall be admitted by the [Appellate Board] [Inserted by Section 10 of MP Commercial Tax (Second Amendment) Act, 1997 (No. 33 of 1997), w.e.f. 1-9-97.] unless, out of the total balance due from the dealer after the order passed in first appeal, twenty per cent of such balance is paid and the memorandum of appeal is accompanied by a satisfactory proof of payment of such amount and thereupon the [Appellate Board] [Substituted by M.P. Vanijyik Kar (Sanshodhan) Act, 2003 (32 of 2003) for the word 'Tribunal' w.e.f. 30-9-2003.] shall stay the recovery of the balance amount till the decision of the appeal.](5)Every first appeal shall be filed within thirty days and every second appeal shall be filed within sixty days from the date of communication of the order against which the appeal is to be filed.(6)[ Subject to such procedure as may be prescribed and after such further inquiry as it may think fit, the Appellate Authority shall dispose of every appeal within one calendar year from the date of filing of such appeal. In disposing of such appeal,-(a)the Appellate Deputy Commissioner may confirm, reduce, enhance or annul the assessment of tax or imposition of penalty or both but shall not remand the case to the officer against whose order the appeal has been filed,(b)the Appellate Board may-(i)confirm, reduce, enhance or annul the assessment of tax or imposition of penalty or both, or(ii)set aside the assessment or the imposition of penalty or both and direct the officer whose order of assessment or imposition of penalty has been appealed against to make a fresh assessment or re-impose penalty, after making such enquiry as it may direct; or(iii)pass such order as it may deem fit.(6-A) Notwithstanding anything contained in sub-section (6) of Section 61 of this Act the appeals pending on the date of commencement of the Madhya Pradesh Vanijyik Kar (Sanshodhan) Adhiniyam, 2003 shall be disposed of by the Appellate Board within one calendar year from the date of the commencement of the said Adhiniyam.] [[Substituted by M.P. Vanijyik Kar (Sanshodhan) Act, 2003 (32 of 2003). Earlier to substitution sub-section (6) reads as under:'(6) Subject to such procedure as may be prescribed and after such further inquiry as it may think fit the Appellate Authority in disposing of any appeal under sub-section (1) or sub-section (2) may-(a)confirm, reduce, enhance or annul the assessment of tax or the imposition of penalty or both; or(b)set-aside the assessment or the imposition of penalty or both and direct the officer whose assessment or penalty order has been appealed against to make a fresh assessment or re-impose penalty after such further enquiry as may be directed; or(c)pass such order, as it may think fit.]](7)In the case of an order passed in the first appeal under this Section against which an application for revision is filed to the Commissioner under sub-section (1) of Section 62, the order passed in revision shall be final and in the case of every other order passed in the first appeal or second appeal under this Section, such order shall, subject to the provisions of this Section 62 or Section 70 as the case may be, final.
