JUDGMENT MISRA, J. - On an application of the assessee under section 24(1) of the Orissa Sales Tax Act (hereinafter referred to as the "Act"), the Member, Additional Sales Tax Tribunal, has stated a case and referred the three questions quoted below for opinion of the Court : "(1) Whether, in the facts and circumstances of the case, the Member, Additional Sales Tax Tribunal, has correctly dismissed the appeal without going into the merits of the assessment and imposition of tax ? (2) Whether, in facts and circumstances of the case, the Member, Additional Sales Tax Tribunal, has misdirected himself in not deciding the merits of the assessment made by the assessing authorities while disposing of the second appeal ? (3) Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, was required under the law to decide the appeal on merit, i.e., on the point of assessment and liability to pay enhanced tax irrespective of the fact that the first appeal was dismissed summarily on the point of limitation ?" 2. The assessee is a grocer carrying on business within the town of Cuttack. For the assessment year 1966-67, the accounts of the assessee were rejected and a best judgment assessment was entered. The assessee preferred a first appeal challenging the additional demand of Rs. 170.31. In the memorandum of appeal, the assessee declared that he had received the order of assessment on 20th February, 1970. As the first appellate authority found that the order was actually received on 3rd December, 1969, and not on 20th February, 1970, as alleged by the assessee, he called upon the assessee to show cause as to why the appeal may not be rejected as being out of time in view of the prescribed limitation of thirty days for preferring of appeal. The assessee filed an application on 26th September, 1970, pleading continuous illness as the ground for condonation of delay. As there was no personal appearance on the date fixed, the appellate authority took the explanation furnished by the assessee into consideration and held that the cause shown was an afterthought and was founded upon deliberate falsehood. He also found that the first appellate authority under the statute has no powers to condone the delay by applying the principles under section 5 of the Limitation Act. Accordingly the appeal was summarily rejected. 3. He also found that the first appellate authority under the statute has no powers to condone the delay by applying the principles under section 5 of the Limitation Act. Accordingly the appeal was summarily rejected. 3. The assessee preferred a second appeal before the Tribunal against the appellate order. The appeal was heard. The Member, Additional Sales Tax Tribunal, came to the conclusion that the assessee had resorted to malpractice by stating in the appeal petition a date different from the actual date of receipt of the assessment order. Such a tactic should not be encouraged and the subsequent plea of illness was nothing but an afterthought. He dismissed the appeal as being devoid of merit. 4. That the first appeal was barred by limitation is not disputed. Mr. Pasayat for the assessee also does not dispute that the first appellate authority under the Act has no power to condone delay in filing of the appeal though according to him the first appellate authority had been given such a power under the parent Act and while making certain amendments to section 23, by oversight the corresponding provision empowering the first appellate authority to condone delay in preferring of appeals has been omitted from the statute. According to Mr. Pasayat even thought the first appeal had been dismissed on the ground of limitation and merits of the case had not been examined, since the summary dismissal of the first appeal on the ground of limitation amounted to a decision in the appeal, a second appeal on all counts was tenable. He relies in support of his contention on an observation of this Court in the case of Commissioner of Sales Tax v. Ramakaran Agarwalla [1962] 13 STC 407. 5. The point for consideration in that case was whether upon summary rejection of a first appeal under rule 49 of the Orissa Sales Tax Rules, a second appeal would lie to the Tribunal. Narasimham, C.J., relied upon a decision of the Supreme Court in the case of Mela Ram & Sons v. Income-tax Commissioner AIR 1956 SC 367 , to hold that even when a first appeal was summarily dismissed, it amounted to an appellate order, and therefore, a second appeal law. Narasimham, C.J., relied upon a decision of the Supreme Court in the case of Mela Ram & Sons v. Income-tax Commissioner AIR 1956 SC 367 , to hold that even when a first appeal was summarily dismissed, it amounted to an appellate order, and therefore, a second appeal law. From both the decisions, we do not find any support for the contention advanced on behalf of the assessee that in second appeal before the Tribunal, the assessee would be entitled to raise contentions on merit of the matter. As already pointed out, the assessee's first appeal was thrown out as being barred by time. Though for purposes of preferring of a second appeal, such summary dismissal amounts to an appellate order, for purposes of the dispute on merit there was actually no first appeal and if we accept Mr. Pasayat's contention that even in such circumstances a second appeal on merit be tenable, it would mean that without disputing facts on merit in a first appeal, a second appeal shall be tenable. Such a procedure is not contemplated under the Rules and is bound to workout hardship and injustice. On one hand it would workout hardship and injustice and on the other it would give a premium to the defaulting assessee. Al the three questions which have been referred to us can be conveniently put into one. We would accordingly reframe the question thus : "Whether, in the facts and circumstances of the case, the Member, Additional Sales Tax Tribunal, was justified in law in confining the consideration in second appeal to the question of dismissal of the first appeal on ground of limitation or was he entitled, and therefore, was required to examine the matter on merits ?" Our answer to the question as reframed by us must be against the assessee, i.e. : In the facts and circumstances of the case, the Member, Additional Sales Tax Tribunal, was justified in law in confining the consideration in second appeal to the question of dismissal of the first appeal on ground of limitation and he was not entitled to examine the merits of the matter. We make no order as to costs. DAS, J. - I agree.