SATISH CHANDRA, J. - (1.) THE petitioner carries on the business of buying and selling photo goods and also of making photographs. Up to the assessment year 1969-70 the Judge (Revisions) upheld the petitioner's contention that the turnover of photographs made by the petitioner was exempt from sales tax because it was a turnover in respect of works contract and not sale of goods. For the assessment year 1970-71 the Sales Tax Officer held that the turnover of photographs was taxable. The assessee preferred and appeal against that order which was also dismissed on 2nd April, 1974, on the finding that the turnover of photographs was not a turnover of works contract but was sale of goods and was hence liable to tax. The petitioner challenges the validity of this order. The petitioner had, under section 10 of the U.P. Sales Tax Act, a statutory remedy. In fact the petitioner has been exercising this remedy of revision under section 10 against similar appellate orders in previous years. There was no justification for the petitioner in not going in revision especially when he had several revisional orders in his favour. In so far as this year is concerned, the present writ petition is liable to fail on the ground that the petitioner had an adequate alternative remedy for the non-exercise of which he has not given adequate reasons.
(2.) FOR the subsequent assessment years, that is, 1971-72 and 1972-73, the Sales Tax Officer accepted the petitioner's contention that the turnover of photographs was exempt from tax, but he rejected the account books of the petitioner in regard to the turnover of photo goods and estimated them for each of the two years. The petition felt aggrieved and challenged this finding in appeals filed by him in respect of the two years. It appears that at the hearing of the appeal the department representative argued before the Appellate Assistant Commissioner that the turnover of photographs was liable to tax and had been wrongly exempted. Thereupon the Appellate Assistant Commissioner issued a notice to the petitioner stating that the departmental representative has stated that the turnover of photographs has remained untaxed and the petitioner should show cause as to why that turnover should not be brought to tax. The petitioner filed a representation stating that the appellate authority had no jurisdiction to touch the turnover which had been held exempt and against which no appeal has been filed by him. Feeling that the appellate authority was not inclined to accept his preliminary objection the petitioner has filed the present writ petition. He questions the jurisdictional validity of the notice issued for the assessment years 1971-72 and 1972-73.
(3.) THE question for consideration is whether in a case where the turnover of any particular commodity which was held exempt from sales tax liability by the assessing authority and which was not the subject-matter of the appeal filed by the assessee, has the appellate authority jurisdiction to reopen the question of taxability of the turnover of that commodity ? Section 9 of the U.P. Sales Tax Act confers a right of appeal on any dealer objecting to any order made by the assessing authority. Under sub-section (2) an appeal has to be in the form and verified in the prescribed manner. Sub-section (3) provides : "(3) The appellate authority may, after giving the appellant and the Commissioner of Sales Tax a reasonable opportunity of being heard, - (a) in the case of an order of assessment or penalty - (i) confirm, reduce, enhance or annul the order of assessment or of penalty or both; or (ii) set aside the order and direct the assessing authority to pass a fresh order after such further inquiry as may be specified; or (b) in the case of any other order, confirm, cancel or vary such order." ;