GULATI, J. - (1.) THIS is a statement of the case under section 11(1) of the U.P. Sales Tax Act relating to assessment years 1966-67 and 1967-68.
(2.) IT appears that the assessment proceedings for the two years in question were taken against the assessee simultaneously. The proceedings were adjourned for many as 12 times. The cases were ultimately were ultimately fixed for 28th May, 1969. The assessee again sought adjournment but the same was refused and the assessments were completed ex parte fixing the turnover at Rs. 2 lacs for each of the tow years. The assessee moved two applications under section 30 of the Act for setting aside the ex parte assessment orders. It did not, however, file appeals against the assessment orders under section 9 of the Act. After the applications under section 30 were rejected, the assessee preferred two appeals against the assessment orders, but these appeals were filed beyond time. The assessee also filed appeals against the orders rejecting the applications under section 30. Both these sets of appeals were eventually dismissed. The appeals against the orders under section 30 were dismissed on the ground that the assessee had wilfully failed to appear on the date fixed and the appeals against the ex parte assessments were dismissed on the ground that they were barred by time. The assessee seems to have contended before the appellate authority that in computing the period of limitation for appeals, the time spent by it in prosecuting the proceedings under section 30 should have been excluded either under section 14 or under section 5 of the Limitation Act. This contention was not accepted by the appellate authority nor has it been accepted by the Judge (Revisions) before whom the assessee went up in revision. Before the Judge (Revisions) it was also contended that the turnover of Rs. 2 lacs fixed for each of the two assessment years was arbitrary and without any material. This contention has also been rejected. However, the Judge (Revisions), at the instance of the assessee, has made this reference on the following questions of law : "(1) Whether, on the facts and in the circumstances of this case, the turnover determined at Rs. 2,00,000 by the assessing authority was justified or not ? (2) Whether, on the facts and in the circumstances of this case, the period spent by the applicant in prosecuting the remedy under section 30 of the U.P. Sales Tax Act should have been excluded for computing the period of limitation for filing the appeal ? (3) Whether, on the facts and in the circumstances of this case, the appellate authority ought to have condoned the delay under section 5 of the Limitation Act ?"
(3.) WE shall take up questions Nos. (2) and (3) first. When an assessment order is passed under the U.P. Sales Tax Act, an appeal lies against it under section 9 and if the order is ex parte, section 30 provides an additional remedy by way of an application for setting aside the ex parte order. The two remedies, however, are not mutually exclusive nor consecutive. They are simultaneous. The period of limitation for both the remedies is 30 days from the date of service of the assessment order. If an assessee wants to avail of both the remedies, he must do so within the period of limitation. It is not open to him to pursue one remedy and thereafter to pursue the other and to claim that the time spent in pursuing the first remedy should be excluded from the period of limitation for the second remedy.;