Venkataramiah, J. - (1.) The short question which arises for consideration in this appeal relates to the period of limitation within which an application for rectification of an order of reassessment passed under S. 21 of the Uttar Pradesh Sales Tax Act, 1948 (Uttar Pradesh Act No. XV of 1948) (hereinafter referred to as 'the Act') can be preferred under S. 22 of the Act.
(2.) The brief facts which are necessary for deciding this case are these. The appellant firm is a dealer carrying on business in Mathura in the State of Uttar Pradesh. An order of assessment was passed in respect of the turnover of the appellant for the year 1975-76 by the Sales Tax Officer, Sector 2, Mathura under the Act on 7-2-1979. Thereafter on January 8, 1980 the Sales Tax Officer issued a notice to the appellant under S. 21 of the Act proposing to make a reassessment in respect of the said assessment year, i.e., 1975-76 on the ground that the mandi cess and arhat (commission) which should have been included in the turnover had escaped assessment and directed the appellant to appear before him along with its account books on 18-1-1980. After looking into the books of accounts and hearing the advocate who appeared on behalf of the appellant, the Sales Tax Officer passed the order under S. 21 of the Act on the same date holding that the appellant was not liable to pay any more tax under the Act. The order passed by the Sales Tax Officer reads thus "Office of the Sales Tax Officer Sector 2, Mathura S/Shri Kundan Lal Srikishan Lala Ganj, Mathura Year:75-76 Section 21 ORDER UNDER SECTION 21 The original tax assessment order in respect of you was passed on 7-2-79. The audit, however, had objected that the businessman's arhat (commission) and mandi cess amount was left out from taxation. On this basis the businessman was called by issuing him notice under the said section. On the appointed day, his advocate appeared and submitted the accounts books. On examination it was found that the businessman had a already included the arhat and mandi cess amount in the taxable income and he had already been assessed. Therefore, no tax is to be levied now and the businessman is declared as free from paying any more tax under section 21. Sd/- B. Lal Sales Tax Officer Sector 2, Mathura Dated:18.1.80"
(3.) In the year 1982, the appellant realised that it was not liable to pay sales tax on purchases made on behalf of ex U.P. principals as such purchases had occasioned inter-state movement of the commodities in question and were as such exempt from the purview of the Act. The appellant, therefore, filed four applications under S. 22 of the Act for rectification of the mistakes in the assessment orders for assessment years 1975-76, 1976-77, 1977-78 and 1978-79 on the ground that the turnover in respect of purchases made on behalf of ex. U.P. principals had been wrongly assessed to sales tax in the aforementioned four years. The applications for rectification made in respect of assessment years 1976-77, 1977-78 and 1978-79 were all within three years of the assessment orders but the application made in respect of the assessment order in respect of the assessment year 1975-76 was beyond three years from the date of the original order of assessment which had been made on 7-2-1979 but within three years from the date of the order passed by the Sales Tax Officer under S. 21 of the Act. All the four applications made by the appellant were rejected by the Sales Tax Officer on merits on 3-1-1983. Thereupon the appellant preferred appeals against the orders rejecting the applications before the Appellate Authority. The said Appellate Authority by its order dated 21-1-1983 allowed the appeals relating to the assessment orders for the assessment years 1976-77, 1977-78, and 1978-79 on merits but dismissed the appellant's appeal in respect of the assessment order for the assessment year 1975-76 on the ground that the appellant's application for rectification filed under S. 22 of the Act had been filed beyond three years from the date of the original order of assessment and was thus barred by limitation. Aggrieved by the order of the Appellate Authority dismissing the appellant's appeal arising out of the application for rectification of the assessment order passed in respect of the assessment year 1975-76, the appellant preferred a second appeal before the Sales Tax Tribunal, Uttar Pradesh. The Department also preferred second appeals against the orders of rectification passed by the Appellate Authority in respect of the orders of assessment for assessment years 1976-77, 1977-78 and 1978-79. The Tribunal disposed of all the appeals by a common order dated 26-2-1985 by which it allowed the appeal of the appellant and dismissed the appeals filed by the Department. The Tribunal held that the appellant was entitled to succeed on merits in each of the appeals and further held that the rectification application made in respect of the assessment order for the assessment year 1975-76 was within limitation as the original order dated 7-2-1979 passed in respect of the said assessment year had ceased to exist on the re-opening of the assessment by the notice issued under S. 21 of the Act and the final order under that section had been passed on 18-1-1980 within three years from the date of the application for rectification which had been filed on 4-11-1982. Aggrieved by the orders of the Tribunal the Department filed four revision applications before the High Court of Allababad. The High Court by its order dated 15-11-1985 dismissed three of the Department's revision applications pertaining to the appellant's rectification applications in respect of the assessment orders for the assessment years 1976-77, 1977-78, and 1978-79 on merits holding that the orders of the Tribunal were correct and no ground had been made out to interfere with them. It, however, allowed the revision application filed by the Department in respect of the application for rectification of the assessment order for the assessment year 1975-76 on the ground that the application for rectification had been filed beyond three years from the date of the original order dated 7-2- 1979 and that the order dated 18-1-1980 passed under S. 21 of the Act had no effect on the question of limitation. Aggrieved by the said order of the High Court the appellant has filed this appeal by special leave.;