Decided on March 30,1965



DESAI, J. - (1.)THIS is a statement of a case referred to this Court under section 11(3) of the U.P. Sales Tax Act, as it was enforced in 1955-56. The facts as they appear from the statement are as under :-
(2.)THE assessee, at whose instance this statement has been submitted, was assessed to sales tax for the assessment year 1949-50 on its turnover for the previous year ending on 31st October, 1948. In the assessment year 1948-49, which is not the assessment year in question, different rates of sales tax were applicable to different commodities on different dates. It is not in dispute that on 1st April, 1949, the first date of the assessment year in question, all the turnover of all those commodities was liable to sales tax at 0-0-6 per rupee which is higher than the rate applicable to them in an earlier part of the previous assessment year 1948-49. The assessee was assessed to the tax in the assessment year in question at the rate of 0-0-6 per rupee. It filed an appeal against the assessment order which was dismissed by the Judge (Appeals) Sales Tax on 5th June, 1960. It was contended before him that the turnover of the commodities for the earlier portion of the previous year ending on 31st October, 1948, should have been assessed at 0-0-3 per rupee instead of at 0-0-6 per rupee. The argument was that since in the (assessment) year 1948-49 the tax payable on the turnover of these commodities for the period ending on 8th June, 1948, or 30th June, 1948, was 0-0-3 per rupee, the turnover of this period of the commodities should have been assessed at only 0-0-3 per rupee instead of at 0-0-6 per rupee, as done uniformaly on the entire turnover. The Judge (Appeals) rejected the argument and dismissed the appeal. The assessee applied in revision against this order of the Judge (Appeals) and the same argument was advanced before the Judge (Revisions); he agreed with the view taken by the Judge (Appeals) and dismissed the revision application on 29th November, 1950. Thereafter (sic) the assessee filed another application before the Judge (Revisions) directed against the order of the assessing authority and on a new ground based upon the provisions of Article 286 of the Constitution. The Judge (Revisions) dismissed this application on 28th November, 1950, not on merits but on the ground that it was not maintainable inasmuch as the order sought to be revised had been confirmed on appeal.
The assessee then applied under section 11(1) to the Judge (Revisions) to refer the case to this Court. That application is full of defects. In the first place it did not specify against which of the two orders passed by the Judge (Revisions) it was directed. According to the questions formulated by it, it could have been directed against both the orders. The order passed on 28th November, 1950, did not deal with the merits of the revision application or the assessment order at all; it was dismissed on a preliminary objection on holding that it was not maintainable at all. Therefore, no question about the merits of the assessment could be said to arise out of that order passed by the Judge (Revisions). If any question of law relating to the assessability could be said to arise, it could be said to arise out of the order dated 29th November, 1950, passed by the Judge (Revisions) refusing to revise the Judge (Appeals) order. Now, one application under section 11(1) could not be filed against two orders passed under section 10(3). Further the application not only contained a prayer for reference of the questions of law said to arise out of the revision order but also answers to the questions and the arguments in support of them. We fail to understand why the assessee asked the Judge (Revisions) to state the case to this Court when it furnished the answers to the questions sought to be referred to this Court and the reasons in support of them. An application which supplied the answer and the reasons therefor could hardly be said to be an application contemplated by section 11(1).

(3.)IT was dismissed by the Judge (Revisions) and then the assessee applied to this Court, which under section 11(3) called upon him to state the case. This Court in its order stated that two questions arose, one dealing with the effect of Article 286 of the Constitution and the other dealing with the maintainability of an application for revision of an assessment order which had been confirmed on appeal. This Court pointed out that the first question had already been referred to this Court in another sales tax reference. It is admitted that the question has been answered against the assessee by this Court in that reference. It was in compliance with this mandamus issued by this Court that the Judge (Revisions) submitted the instant statement of the case. The question formulated by him is as follows :- "Whether a revision from an assessment order is maintainable if an appeal from the same order has been filed and dismissed ?"

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