JUDGMENT U. L. BHAT, C.J. - The following questions of law have been referred by the Appellate Tribunal at the instance of the Revenue under section 44(1) of the M.P. General Sales Tax Act, 1958 (for short "the Act") : (i) Whether, under the facts and circumstances of the case, the payment of Rs. 4,225 was in conformity with the requirement of section 38(3) of the M.P. General Sales Tax Act, 1958 ? (ii) Whether, under the facts and circumstances of the case, it was mandatory to give opportunity to amend the memo of appeal, as required by rule 58 of the M.P. General Sales Tax Rules, 1959, and whether such amendment would cover the payment of the amount by which it fell short of requirements laid down by section 38(3) ? (iii) Whether, under the facts and circumstances of the case, the Board of Revenue was justified in holding that the date of entertainment of first appeal by the Appellate Deputy Commissioner was the date on which he decided to issue notice under rule 58 and hence the summary dismissal was in order ? 2. The matter relates to the period November 4, 1975 to October 23, 1976. Assessment was completed. The assessee had to pay certain sums of money as balance. Penalties under section 43(1) of the Act and rule 69-A were also imposed. Assessee filed an appeal before the appellate authority depositing only Rs. 4,275. Notice was issued to him to show cause why on account of non-payment of balance amount due as required under section 38(3) of the Act, the appeal should not be dismissed. Thereafter he deposited the balance due. Nevertheless the appellate authority dismissed the appeal. This order has been confirmed by the Appellate Tribunal in further appeal. 3. The requirement of deposit of a part of the balance amount due under section 38(3) of the Act is a condition precedent for admitting the first appeal or second appeal and not for filing the first appeal or second appeal. Rule 57(2)(ii) no doubt states that memorandum of appeal shall be accompanied by a copy of challan in proof of payment of the amount, if any, in accordance with the provisions of section 38(3). But it is not the requirement of the statutory provision that the appeal should be accompanied by proof of deposit. The proof of deposit is necessary only for admitting the appeal. But it is not the requirement of the statutory provision that the appeal should be accompanied by proof of deposit. The proof of deposit is necessary only for admitting the appeal. The rule cannot be enforced in derogation to the statutory provision. (See Babulal Mohanlal Kandele v. Commissioner of Sales Tax [1981] 47 STC 164 (MP) and Sadhana Enterprises v. Commissioner of Sales Tax [1987] 64 STC 172 (MP); (1986) 19 VKN 74 . 4. Question No. 1 has to be answered in favour of the assessee. Question No. 2 relates to the alleged requirement to amend the memorandum of appeal. The assessee, after depositing the balance amount, did not seek amendment of the memorandum of appeal. His appeal was not dismissed on the ground of absence of amendment. Therefore, this question does not arise. It is agreed that question No. 3 also does not arise. 5. In the result, question No. 1 is answered in the affirmative, i.e., in favour of the assessee and against the Revenue. Questions 2 and 3 do not arise for consideration. First appeal before the appellate authority will have to be taken back on file and dealt with on merits. 6. The reference is answered accordingly. 7. A copy of this judgment under the signature of the Registrar and seal of the High Court be transmitted to the Board of Revenue. Reference answered accordingly.