C.S.P.Singh, J. - (1.) The assessee, who is the-petitioner here, had filed four revisions before the Additional Judge (Revisions), Sales Tax, Gorakhpur. These revisions were listed for hearing on 22nd February, 1973. The applicant's case is that its pairokar went to the court at 10 A.M. and found that the presiding officer was not sitting in the court. He then went to civil courts in connection with some other case, and came back again at 2 P.M. when he was told that the Additional Judge (Revisions), Sales Tax, had left the court after finishing court work for that day. It is averred that the pairokar of the assessee went to the court of the Additional Judge (Revisions), Sales Tax, on the next day, i. e., 23rd February, 1973, along with a letter of the counsel for the assessee to the effect that he could not attend the court on 22nd February, 1973, as he was ill. This letter was not entertained. Thereafter he sent an application on 26th February, 1973, which was received in the office of the revising authority on 28th February, 1973. A prayer was made in this application that the petitioner be heard. The petitioner was not informed of the order passed on this application. On receiving the ex parte order of the Additional Judge (Revisions), Sales Tax, on 16th March, 1973, he filed a restoration application on 10th April, 1973. The Judge (Revisions) has dismissed this application on two grounds. In the first place he has taken the view that there was no justification for the assessee for waiting till 10th April, 1973, for moving the restoration application, and further that there was no specific provisions in the Act for setting aside the ex parte order. We are of the view that the revising authority is in error on both the counts.
(2.) We have already adverted to the fact that the petitioner had moved an application on 26th February, 1973, for setting aside the ex parte order. In the counter-affidavit filed on behalf of the department, it has been admitted in para 7 that such application was received in the office on 28th February, 1973. It is, however, stated that the report of the Reader dated 2nd March, 1973, regarding this application was placed before the Additional Judge (Revisions), Sales Tax, on 5th March, 1973, whereupon the Additional Judge (Revisions) directed it to be filed, inasmuch as the revisions had been disposed of on 28th February, 1973. The revising authority has not referred to this application at all. There was no delay in making this application, and in fact the application had reached the office of the revising authority on 28th February, 1973, on which date the judgment was given. The office of the revising authority should have put up this application before the revising authority on the same date, and should not have withheld this application, as the case was being disposed of on that date, and all pending applications in the case should have been put up before the Presiding Officer for disposal. Inasmuch as an application had already been moved on 26th February, 1973, and was received on 28th February, 1973, on the date when the case was being disposed of, there was no delay on the part of the assessee in moving the restoration application. There also does not appear any delay on the part of the assessee in moving the second application as it was moved within a month of the assessee having received the copy of the order of the revising authority. It is, however, not necessary to consider the delay or haste in moving, the second application for restoration, as there was already a pending application for restoration of the case on the date when the judgment was delivered. It was thus erroneous on the part of the revising authority to have held that there was delay on the part of the assessee in moving the restoration application, and further that it was inexcusable.
(3.) Coming now to the question as to whether the revising authority had jurisdiction to set aside the ex parte order. The unanimous weight of judicial authority is that he enjoyed such a jurisdiction.;