R.L. Gulati, J. - (1.) THIS is a reference under Section 11(1) of the U.P. Sales Tax Act at the instance of the assessee.
(2.) THE assessee is a dealer in foodgrains. In respect of the assessment year 1956 -57, the assessee applied for exemption under Rule 20 -B of the U.P. Sales Tax Rules. Exemption order was passed on 30th March, 1961, determining the amount of exemption fee payable by the assessee. The assessee was required by a notice to pay the exemption fee by a certain date. This notice was not complied with, with the result that it became necessary for the department to pass an assessment order against the assessee under Rule 23. Accordingly, the Sales Tax Officer issued a notice under Section 21. No compliance appears to have been made of that notice, whereupon an assessment order was passed on 20th April, 1961. The assessee's contention was that the notice under Section 21 had not been served upon him at all. The department contended that the notice was tendered to the assessee's real brother, who refused to accept the same and that amounted to a valid service. The other question which arose was as to whether Section 21 was applicable. If Section 21 was not applicable, the assessment would be time -barred.
(3.) THE revising authority took the view that an order passed under Rule 23 was neither an order under Section 21, nor an order under Section 7(3). In its opinion, it was a consequential order on the failure of the assessee to comply with the exemption order passed under Rule 20 -B. For such an order there was no period of limitation. At the instance of the assessee, the revising authority has referred the following three questions for our opinion : (1) Whether even a real brother, who is (sic) joint with the assessee and has no connection with the assessee's business is a 'member of his family' for purposes of service under Rule 77(b) of the U. P. Sales Tax Rules ? (2) Whether returns filed by an assessee for purpose of exemption application under Rule 20 -B of the U.P. Sales Tax Rules can be regarded as returns under Section 7 of the U.P. Sales Tax Act and Rule 41 of the U.P. Sales Tax Rules for purposes of 'initiating' assessment proceedings ? (3) That in view of the pronouncement of their Lordships of the Supreme Court cited above (Ghanshyamdas v. Regional Assistant Commissioner the decision of our own High Court in Kishan Lal Gopi Kishan, Sarraf v. Commissioner, Sales Tax, U.P. in S.T.R. No. 397 of 1961 decided on 30th July, 1963, by their Lordships Desai, C.J., and Asthana, J., that a first assessment cannot be escaped assessment even if it is so maintained in the assessment order is still good law or should be considered overruled ?;