GULATI, J. - (1.) IN this group of four writ petitions, four assessment orders under the U.P. Sales Tax Act, all dated 20th March, 1963, have been challenged. The assessment orders were made by Sri L. L. Merh, Sales Tax Officer, Kanpur. They were challenged on the ground that Sri Merh had not been authorised by the State Government to make any assessment under the Act in accordance with section 2(a) of the Act and as such the impugned orders were without jurisdiction. In support of this contention reliance was placed on a decision of a Division Bench of this court in Commissioner of Sales Tax, U.P., Lucknow v. Messrs Punjab Trading Company Ltd., Bhatinda [Sales Tax Reference No. 276 of 1957 decided on 11-4-1963]. On behalf of the opposite parties, reliance was placed upon the decision of another Division Bench in State v. Duli Chand ([1968] 22 S.T.C. 191; A.I.R. 1967 All. 349) and the decision of a learned Single Judge of this court in M/s. Agarwal Vastra Bhandar v. Commissioner of Sales Tax, U.P., Lucknow [Misc. Case No. 51 of 1962 decided on 17-8-1966]. As the Bench hearing these petitions was of the opinion that there appeared to be a conflict between the decisions relied upon by the two sides, it referred the following question for the decision to a larger Bench : "Whether in these four cases Sri L. L. Merh, Sales Tax Officer, Kanpur, had jurisdiction to pass the four assessment orders dated 20th March, 1963 ?" That is how these petitions have now come before this Full Bench.
(2.) THE whole argument of the learned counsel for the petitioner is based upon the definition of the term "assessing authority" as contained in clause (a) of section 2 of the Act, according to which "assessing authority" means any person authorised by the State Government to make any assessment under this Act. He has referred to two notifications. The first is Notification No. ST-602/X-1013 (2)/53 dated 21st March, 1953, under which Sri Merh was appointed as Sales Tax Officer for the first time. This notification reads :- "With effect from 25th February, 1953, Sri L. L. Merh, Assistant Sales Tax Officer is appointed to officiate as Sales Tax Officer, Kheri vice Shri S. S. Sharma." The second notification is Notification No. ST-2815/X-915-61 dated 5th July, 1961, published in the U.P. Gazette dated 15th July, 1961. This notification contains a list of officers who were transferred from one circle to another. At serial No. 13 of this notification appears the name of Sri L. L. Merh who was transferred from circle Deoria to circle Kanpur. Sri Pachauri contends that neither of the two notifications contains an authorisation in favour of Sri L. L. Merh to make an assessment under the Act as required by section 2(a). He then referred to certain rules framed under the Act and contended that the rules contemplate the appointment of a person as Sales Tax Officer but none of the rules expressly authorises the Sales Tax Officer to make an assessment. According to him, there was a lacuna which was pointed out by this court in the case of M/s. Punjab Trading Co. Ltd. [Sales Tax Reference No. 276 of 1957 decided on 11-4-1963] and in order to fill up this lacuna, rule 3-B was added which provided that "subject to the provisions of rule 6, all Sales Tax Officer shall be assessing authorities and they are authorised to make assessments under the Act". This rule was added on 26th September, 1964. It was prospective and could not be availed of to justify the impugned assessments which were made on 20th March, 1963. The short question, therefore, that arises is as to what was the position before the addition of rule 3-B. Could a Sales Tax Officer make an assessment without his having been specifically authorised to do so ? The authorisation contemplated by section 2(a) can be made by a general order, by a special order or under the rules framed by the State Government. Section 24(a) empowers the State Government to make rules to carry out the purposes of the Act. Clauses (a) to (h) of sub-section (2) of section 24 enumerates certain matters in respect of which rules may be framed. Sub-clause (e) relates to the appointment, duties and powers of officers appointed for the purpose of enforcing the provisions of the Act. There are several officers and authorities under the Act, some of whom exercise judicial powers of assessment, appeal and revision, while the other authorities exercise executive and administrative powers. The rules define such authorities as have not been defined in the Act and also lay down the extent of their jurisdiction and the manner in which such jurisdiction is to be exercised. We are here concerned with an assessing authority and shall refer only to such rules as relate to the appointment, duties and powers of an assessing authority.
(3.) IN exercise of the rule-making power conferred by section 24(1), the State Government has enacted a set of rules. When we look into the rules, to which we shall presently refer, were find that there is no mention of an "assessing authority". Instead, the rules speak of an officer called the "Sales Tax Officer". Under rule 2(h) a Sales tax Officer has been defined to mean a Sales Tax Officer of a circle appointed by the State Government to perform the duties and exercise the power of an assessing authority in such circle. Rule 2(c) defines a circle as a sales tax circle notified under sub-rule (1) of rule 3. Under sub-rule (1) of rule 3 the State Government may by notification in the official Gazette create and fix the limits of the circle and appoint officers to such circle, and under sub-rule (3) of rule 3 where there are more than on Sales Tax Officer in a circle, the Commissioner is to determine their respective jurisdiction in such circle. Finally, we have rule 6, the heading where of is "power of assessment." Clause (a) of that rule says that the Sales Tax Officer shall be the assessing authority in respect of the dealers carrying on business within the limits of his jurisdiction.;