- (1.) THIS is an application under section 11(4) of the U.P. Sales Tax Act, 1948.
(2.) ON 31st March, 1963, the Sales Tax Officer, Banda, passed an ex parte assessment order against the assessee for the assessment year 1958-59. The assessee made an application for setting aside the ex parte assessment order. The Sales Tax Officer was satisfied with the cause shown for the absence of the assessee, and on 17th June, 1963, set aside the ex parte assessment order. The Commissioner of Sales Tax felt aggrieved and filed a revision. The Additional Judge (Revisions), Sales Tax, on 5th August, 1966, allowed the revision. He set aside the order restoring the case and at the same time in exercise of his suo motu powers, set aside the original assessment order dated 31st March, 1963, as well and remanded the case for fresh assessment. Aggrieved, the assessee made an application for reference which has been rejected. In the present application, the assessee wanted eight questions to be referred but at the hearing the learned counsel confined to two questions. They are : "1. Whether the fact that the assessment would become time-barred was a relevant consideration, while adjudicating an application under section 30 of the U.P. Sales Tax Act for setting aside an ex parte order ? 2. Whether the Additional Judge (Revisions) was justified in exercising suo motu powers ?"
(3.) SECTION 30 of the Act authorises the assessing authority to set aside an ex parte assessment order and reopen the case if it is satisfied that the assessee did not receive notice or was prevented by sufficient cause from appearing on the date fixed. It would be seen that though the grounds upon which the assessing authority can reopen the case are non-receipt of the notice or other sufficient cause which prevented him from appearing on the date fixed, the assessing authority has been given discretion yet to refuse to reopen the case, by providing that if the assessing authority was satisfied that the application did not receive notice or was prevented by other sufficient cause from appearing on the date fixed, it "may" set aside the order and reopen the case. The use of the word "may" suggests that the assessing authority is not bound to set aside an order merely because there was sufficient cause for non-appearance on the date of hearing. It could take into consideration other aspects and circumstances attending the particular case.;