GULATI, J. - (1.) THE Additional Judge (Revisions) Sales Tax, Agra, has submitted this statement of the case under section 11(1) of the U.P. Sales Tax Act for the opinion of this court on the following question of law : "Whether a rectification order, assessing the assessee to tax on an escaped turnover, can be passed in proceedings under section 22 of the U.P. Sales Tax Act when direct assessment of the said 'escaped turnover' has become time-barred under section 21(2) of the U.P. Sales Tax Act ?"
(2.) THE assessee is a firm supplying oil-seeds to Prag Ice and Oil Mills, Aligarh. For the year 1958-59, proceedings under section 21 of the Act were taken against the assessee, during which the assessee contended that it acted merely as a purchasing agent to Prag Ice and Oil Mills, Aligarh, and, in support of the contention, it produced the accounts as well as filed an affidavit. The Sales Tax Officer accepted the plea of the assessee and passed an assessment order dated 27th February, 1962, holding that the assessee was not liable to sales tax on its turnover of purchases made on behalf of Prag Ice and Oil Mills. Later on, it was discovered that in the affidavit filed by the assessee, it had also been mentioned in paragraph 3 thereof that "the said firm also supplied oil-seeds to Prag Ice and Oil Mills of dealers outside Uttar Pradesh in which the firm acted as selling agents to outside Uttar Pradesh dealers and as purchasing agents to Prag Ice and Oil Mills." The Sales Tax Officer took the view that in respect of the turnover of sales made by the assessee on behalf of the non-resident dealers, the assessee was liable to sales tax and that the original assessment order should be rectified. He accordingly issued a notice under section 22 of the Act and passed an order under that section on 23rd January, 1965, levying tax on the turnover of sales effected by the assessee on behalf of the ex U.P. principals to Prag Ice and Oil Mills. Against the order passed under section 22, the assessee went in revision before the Judge (Revisions) who dismissed the same. At the instance of the assessee, this reference has now been submitted to this court. Section 22 relaters to rectification of mistakes and runs as under : "Section 22. Rectification of mistakes. - (1) The assessing, appellate or revising authority may at any time within three years from the date of any order passed by him rectify any mistake apparent on the face of the record of appeal, revision, assessment or refund, as the case may be : Provided that no such rectification, which has the effect of enhancing the assessment shall be made unless the authority concerned has given notice to the dealer of his intention to do so and has allowed him a reasonable opportunity of being heard. (2) Where such rectification has the effect of enhancing the assessment, the authority concerned shall serve on the dealer a revised notice of demand in the prescribed form and therefrom all the provisions of the Act and the rules framed thereunder shall apply as if such notice had been served in the first instance." An order under section 22 can be passed only to rectify a mistake which is apparent on the face of the record and the limitation for such an order is three years from the date of the order sought to be rectified. In the instant case, the original assessment order was passed on 27th February, 1962. That order could be rectified under section 22 up to 27th February, 1965. The order of rectification was passed on 23rd January, 1965, and was thus within the period of limitation. Sub-section (2) of section 21 imposes a bar of limitation on an assessment order passed under sub-section (1) of section 22 or under any other provisions of the Act and the period of limitation is four years from the end of the relevant assessment year. An order under section 22 of the Act has its own period of limitation and cannot be governed by the period of limitation prescribed for an assessment order under sub-section (2) of section 21.
(3.) THE learned counsel, however, submits that an order under section 22 is also an order of assessment and, therefore, the period of limitation provided under sub-section (2) of section 21 should also apply to such an order. We do not agree. An order under section 22 is not an order of assessment, even though it may result in the enhancement of tax. Every order which results in enhancement of tax is not an order of assessment. Section 9 of the Act provides for an appeal against an order of assessment made under section 7, 7-A, 7-B, 18 or 21. Section 22 is not one of the sections mentioned in section 9 which clearly shows that an order under section 22 is not regarded by the Legislature as an order of assessment; otherwise there is no reason why an appeal should not have been provided against that order also. In M. M. Parikh, Income-tax Officer, Special Investigation Circle "B", Ahmedabad v. Navanagar Transport and Industries Ltd. and Another ([1967] 63 I.T.R. 663 (S.C.)), the Supreme Court held that "an order under section 23A of the Indian Income-tax Act, 1922, as amended by the Finance Acts of 1955 and 1957, made by the Income-tax Officer directing payment of additional super-tax is not an order of assessment within the meaning of section 34(3) of the Act, and to such as order the period of limitation prescribed under section 34(3) does not apply." It was further observed that "every order which contemplates computation of income for determination of the amount of tax payable is not an order of assessment within the meaning of the Act : nor does prescribing of procedure for determining and imposing tax liability make it an order of assessment.";