GULATI, J. - (1.) THESE are two references submitted by the Additional Judge (Revisions) Sales Tax, Agra, one arising out of proceedings under the U.P. Sales Tax Act and the other arising out of proceedings under the Central Sales Tax Act in respect of the same assessee, namely, M/s. Amrish Chandra Surendra Kumar of Agra.
(2.) IN respect of the assessment year 1957-58 two ex parte assessment orders were passed against the assessee, one under the U.P. Sales Tax Act and the other under the Central Sales Tax Act, because of the failure of the assessee to be present on the date of the hearing. The Sales Tax Officer rejected the account books of the assessee and made a best judgment assessment fixing the turnover at Rs. 3,60,000 under the U.P. Act and Rs. 30,000 under the Central Act. The assessee in due course filed appeals against the assessment orders which were dismissed as time-barred. The assessee had also moved an application under section 30 for setting aside the ex parte order, but the same was rejected. The assessee thereafter filed an appeal and then went up in revision against the order rejecting its application under section 30. The assessee also asked for a reference on this aspect, but the Judge (Revisions) has declined to make a reference. We are, therefore, not concerned with that aspect of the matter. After the dismissal of the assessee's appeals against the ex parte assessment orders, two revision applications were filed under section 10 of the Act. The Judge (Revisions) partly allowed those revisions. He condoned the delay in filing the appeals, set aside the appellate order dismissing the appeals as time-barred and reduced the taxable turnover to Rs. 2,10,000 under the U.P. Act and to Rs. 20,000 under the Central Act. At the instance of the assessee the revising authority has submitted the following questions of law for our opinion : "(1) In a case in which assessee's appeal has been dismissed on the point of limitation only, without entering into merits of acceptance or rejection of accounts or of quantum and the assessee files a revision against that order praying only for condonation of delay and remand of the case for hearing of the appeal on merits, whether it is proper and legal for the revising authority after condoning the delay, to decide the questions of acceptance or rejection of accounts and quantum, without allowing the assessee an opportunity of having his case on these points heard by the appellate authority and decided ? (2) Whether on the facts and circumstances of the case assessment made by the Additional Judge (Revisions) Sales Tax, was not arbitrary ?" Question No. (1) relates to the jurisdiction and propriety of the orders passed by the Judge (Revisions) disposing of the revision application of the assessee on merits. From a perusal of the revisional order it does not appear that any such objection was raised by the assessee as is contemplated by question No. (1). In fact the Judge (Revisions) in the statement of the case has observed : "The assessee or his learned counsel appears to have argued on the merits, and I appear to have delivered judgment on merits without considering this aspect of the matter."
(3.) IT appears that at the time of the hearing of the application under section 11(1), it was contended on behalf of the assessee that after the Judge (Revisions) had condoned the delay, the appeals should had been remanded to the appellate authority for decision on the merits and the Judge (Revisions) should not have gone into the merits. We are of opinion that the assessee was not entitled to raise any such question because no such question was raised or argued at the time when the revision applications were heard. The question of law which this court can be called upon to answer must be a question arising out of the revisional order.;