SATISH CHANDRA, J. - (1.) ON receiving information that some turnover had escaped assessment for the assessment year 1956-57, the Sales Tax Officer issued notice to the assessee under section 21 of the U.P. Sales Tax Act on 7th September, 1960. Subsequently, on 27th March, 1961, another notice under section 21 was issued requiring the assessee to file his return by 30th March, 1961. The assessee, however, did not file any return. The Sales Tax Officer, on 24th March, 1962, passed an ex parte assessment order determining the escaped turnover at Rs. 10,00,000 and assessing the assessee to a tax of Rs. 31,250.
(2.) THE assessee felt aggrieved and went up in appeal. The Appellate Assistant Commissioner (Judicial) held that the assessment order was passed within the prescribed period of time. He took note of the plea raised on behalf of the assessee that he did not do any business during the year 1956-57 and found that the Sales Tax Officer had not adequately dealt with the question. The assessee pleaded that the information with regard to the draft in the sum of Rs. 73,411-9-6 in the possession of the Sales Tax Officer was misconceived. He held that the assessee should have been confronted with this information before drawing an adverse conclusion against him. He consequently set aside the order of the Sales Tax Officer and remanded the case back for a fresh investigation into the points mentioned by him and after giving full opportunity to the assessee to rebut the case of the department. The appellate order of remand was confirmed in revision. At the instance of the assessee the revising authority has referred the following questions of law for the opinion of this court under section 11(4) of the U.P. Sales Tax Act : "(1) Whether, upon the material before the Assistant Commissioner (Judicial), he exercised the power of remand in accordance with the provisions of law and in the sound exercise of his judicial discretion ? (2) Whether the Sales Tax Officer had jurisdiction to issue the second notice under section 21 in the circumstances of the cases and whether that notice can be taken into consideration in determining whether the assessment order dated 24th March, 1962, was made within limitation ?"
(3.) IN our opinion, the second question deserves to be considered first and we proceed to do so.;