GULATI, J. - (1.) AT the instance of the Commissioner of Sales Tax, U.P., the Additional Judge (Revisions), Sales Tax, Agra, has submitted this statement of the case under section 11(3) of the U.P. Sales Tax Act for the opinion of this court on the following question of law : "Whether on the facts and circumstances of the case, it was legal and proper for the Additional Judge (Revisions) to set aside the assessment order and appellate order against which the dealer had not filed any revision ?"
(2.) THE assessee who is a dealer in foodgrains and oil-seeds was assessed under the U.P. Sales Tax Act for the year 1959-60 by an ex parte order dated 26th November, 1962. The assessee moved an application under section 30 of the Act for setting aside the assessment order and making a fresh assessment on the ground that he could not attend on the appointed date because of his illness. The application was, however, rejected initially on the ground that the assessee had not paid the admitted tax. The matter, however, was remanded by the Assistant Commissioner (Judicial) on the ground that the application had been rejected by the Sales Tax Officer without giving a proper opportunity to the assessee to explain the case. On remand the Sales Tax Officer rejected the application holding that the assessee had not been able to establish any sufficient cause of his absence on the appointed date. The assessee again went up in appeal which was allowed on the ground that there was no proper service on the assessee of the date of the hearing of the application under section 30. The matter went back to the Sales Tax Officer and he once again rejected the application on the ground that the assessee had not made out any sufficient cause for his absence on the date of hearing. In the meantime while the proceeding relating to section 30 was going on, the assessee had filed an appeal under section 9 against the assessment order. That appeal was dismissed. When the appeal against the order under section 30 came before the Assistant Commissioner (Judicial) on the third occasion, he held that the same had become infructuous as the appeal against the assessment order had been dismissed on the merits. Alternatively, he also confirmed the finding that there was no sufficient cause for non-appearance on the date of the hearing. The assessee then applied in revision against the order of the Assistant Commissioner (Judicial) relating to section 30 proceedings, but he did not file a revision petition against the appellate order relating to the assessment order. The revising authority accepted the plea of the assessee that his failure to appear before the Sales Tax Officer was due to sufficient cause and he accordingly set aside the appellate order and remanded the case back to the Sales Tax Officer to dispose of the assessee's application under section 30 afresh.
(3.) IT appears that an objection was raised on behalf of the department before the Judge (Revisions) that as the assessee had not filed an application for revision of the appellate order confirming the assessment, the assessment had become final and as such the assessee's revision directed against the proceedings under section 30 had become infructuous. The Judge (Revisions) overruled this objection and held that the remedy under section 30 was different from the remedy by way of an appeal against the assessment order under section 9 of the Act. Accordingly the revision application of the assessee was maintainable. He, however, exercised his suo motu power vested in him under section 10 and set aside the order passed by the Assistant Commissioner (Judicial) confirming the assessment order. He felt that the effect of the order passed by him allowing the assessee's revision directed against the proceedings under section 30 was to have the assessment reopened before the Sales Tax Officer and it was desirable that the order of the Appellate Assistant Commissioner confirming the assessment order should also be set aside. The Commissioner is aggrieved and has brought this reference before this court.;