GULATI, J. - (1.) THIS is a reference under section 11(3) of the U.P. Sales Tax Act at the instance of the Commissioner of Sales Tax, U.P., Lucknow.
(2.) AN assessment was made against the assessee for the year 1958-59 under section 7 of the U.P. Sales Tax Act on its turnover of bullion and ornaments. Subsequently, the Sales Tax Officer received information that during the assessment year in question the assessee had sold foodgrains through a commission agent and finding that such turnover had not been included in the assessment, he reopened the assessment by a notice under section 21 of the Act which was served upon the assessee on 21st March, 1963. An ex parte assessment was made on 27th March, 1963. The assessee appealed against the assessment order as well as made an application under section 30 for setting aside the ex parte assessment order and for making a fresh assessment. The assessee's appeal was not entertained by the appellate authority on the ground that the memorandum of appeal was not accompanied by the proof of payment of the admitted tax. The appeal was rejected by an order dated 9th July, 1963. The application under section 30 was rejected by the Sales Tax Officer on 26th December, 1963. Thereupon the assessee filed an appeal against the order rejecting its application under section 30. The appellate authority found that there was sufficient cause for the non-appearance of the assessee before the Sales Tax Officer and as such the ex parte assessment was not justified. By his order dated 19th May, 1965, he set aside the ex parte assessment order and directed the Sales Tax Officer to make a fresh assessment after giving to the assessee a reasonable opportunity of being heard.
(3.) ONE of the contentions raised before, the appellate authority on behalf of the department was that the assessee's appeal on merits having already been dismissed, the appeal against the order under section 30 was not maintainable, as the order passed in appeal against the assessment under section 21 would be rendered infructuous, if the appeal against the order under section 30 was allowed. This contention was overruled by the appellate authority. The Commissioner went up in revision which has been dismissed. Hence this reference.;