GULATI, J. - (1.) THIS is a petition under article 226 of the Constitution.
(2.) IT appears that the assessment proceedings under the U.P. Sales Tax Act were taken against the petitioner simultaneously for the years 1966-67 and 1967-68. The hearing was adjourned for a number of times and was finally fixed for 28th May, 1969. The petitioner again sought adjournment, but the same was refused and the assessments were completed ex parte fixing the turnover at rupees two lacs for each of the two years. The petitioner moved two applications under section 30 of the Act for setting aside the ex parte assessment order. These applications were rejected and thereafter the petitioner preferred two appeals against the assessment orders, but they were filed beyond time. The petitioner also filed appeals against the orders rejecting the applications under section 30. Both these sets of appeals were eventually dismissed. The appeals against the order under section 30 were dismissed on the ground that the petitioner 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 petitioner 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 was it accepted by the Judge (Revisions). Before the Judge (Revisions) it was contended that the assessment of the turnover at rupees two lacs fixed for each year was arbitrary and without any material. The Judge (Revisions) disposed of these grounds in the following words : "When the four revisions were heard, in view of the gap between the assessee's estimates and the estimates of the S.T.O., I felt inclined to allow the revisions so that the assessee could be given an opportunity to place its version before the assessing authority. At that time, I was not given any indication that in the next preceding year, i.e., 1965-66, the admitted turnover of the assessee was Rs. 81,000 and the estimate made by the assessing authority was Rs. 1,50,000. I had observed that even though there may not have been any sufficient cause for non-appearance yet when the estimates are without basis this court would be entitled to ask for the correction of the assessment. Now that the assessment order has been read from which it has appeared that even in the next preceding year the turnover has been fixed at Rs. 1,50,000. This aspect of the assessment has disappeared." The petitioner then applied for a reference and the revising authority referred the following three questions for the opinion of this court : "(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.) THIS court by its judgment dated 23rd September, 1972 (Satish Chandra Nirmesh Kumar v. Commissioner of Sales Tax ([1973] 31 S.T.C. 440), answered questions Nos. (2) and (3) in the negative and against the assessee. Question No. (1) was answered in favour of the assessee in the following words : "The two assessments were best judgment assessments and of necessity had to be made by estimate. But even an estimate has to be based upon some material. It cannot be a sheer guess. For the assessment year 1966-67, the assessee had returned a turnover of Rs. 28,870 and for the assessment year 1967-68, the returned turnover was Rs. 16,889. The Sales Tax Officer estimated the turnover for both the assessment years at a uniform figure of Rs. 2 lacs. The revising authority at first considered the assessment too high and arbitrary, but when it found that the turnover for the immediately preceding year had been fixed at Rs. 1,50,000, it confirmed the assessments. From the statement of the case now it appears that the turnover as fixed by the assessing authority for the year 1965-66 was Rs. 1,15,000 and not Rs. 1,50,000. Thus the basis upon which the revising authority proceeded to confirm the assessment has turned out to be erroneous. Moreover, the assessment for the year 1965-66 was then pending in revision before the Judge (Revisions). He has since set it aside and remanded the case to the Sales Tax Officer for a fresh assessment. Thus the very basis upon which the two assessments in question have been affirmed has disappeared. There is no other material upon which the assessments can be justified." ;