- (1.) R. K. GULATI, J. This is a revision filed under section 11 of the U. P. Sales Tax Act, 1948 (now called "the Uttar Pradesh Trade Tax Act") hereinafter referred to as "the Act".
(2.) FOR the assessment year 1980-81, the assessment was made on best judgment on a turnover of rupees ten lakhs against the disclosed turnover of Rs. 1,90,950. The assessee carried the matter in appeal before the Assistant Commissioner (J), Sales Tax, Varanasi. The appeal was allowed. The assessment order was set aside to be made de novo in accordance with directions in the appellate order. The assessee preferred a further appeal against the order of remand to the Sales Tax Tribunal, Varanasi. During the pendency of the appeal, the Sales Tax Tribunal by its order dated January 29, 1986 stayed the operation of the order appealed against. The appeal was ultimately dismissed by the Tribunal on September 3, 1986 and with that the stay order automatically stood discharged. The order of the Sales Tax Tribunal dismissing the appeal, was served on the State Representative on September 29, 1986 and upon the assessing authority on October 17, 1986. The fresh assessment in pursuance of the remand order was made on June 6, 1987 which was again challenged unsuccessfully in appeal before the Assistant Commissioner (J) who dismissed the appeal. However, in second appeal, the Sales Tax Tribunal again set aside the reassessment order for fresh assessment by its order dated May 1, 1989. It is against this order that the present revision has been preferred. It may be observed that one of the questions canvassed before the Appellate Tribunal was that reassessment order which was passed in remand proceedings, was barred by the time inasmuch as it was not made within the stipulated period of one year of the service of the remand order on the State Representative which as already stated, was served on September 29, 1986. The Appellate Tribunal repelled that contention and dismissed the appeal so far that point was concerned. It took the view that the period of one year within which the reassessment order could have been made, had to be computed from the date a copy of the order by the Tribunal was received by the assessing authority and not from the date that order was served on the State Representative. It is the correctness of this part of the order of the Sales Tax Tribunal which has been challenged by the assessee before this Court in this revision. Now sub-section (2) of section 21 of the Act says that except as otherwise provided in that section no order of assessment or reassessment under any provision of the Act for any assessment year shall be made after the expiration of four years from the end of such year. We are concerned with sub-sections (4) and (6) of section 21. Sub-section (4) of that section provides as under : " If an order of assessment is set aside and the case is remanded for reassessment by any authority under the provisions of this Act or by a competent court, the order of reassessment may be made within one year from the date of receipt by the assessing authority of the copy of the order remanding the case, or by December 31, 1982, whichever is later. " Sub-section (6) of section 21 says : " Where the proceedings for assessment or reassessment for any assessment year remains stayed under the orders of any court or authority, the period commencing on the date of stay order and ending with the date of receipt by the assessing authority concerned of the order vacating the stay, shall be excluded in computing the period of limitation provided in this 4 : Provide that if in so computing, the period of limitation comes to less than six months, such assessment or reassessment may be made within six months from the date of receipt by the assessing authority of the order vacating the stay. "
(3.) THE learned counsel for the assessee argued that the Sales Tax Tribunal committed a manifest error of law in taking the view that the period of one year talked of in the provisions extracted above within which reassessment could be made, was to be reckoned from the date the remand order was served on the assessing authority and not from the date a copy of that order was received by the State Representative. In support of that contention, the learned counsel for the assessee referred to the provision of rule 68 of the Rules framed under the Act which at the relevant time, were known as "uttar Pradesh Sales Tax Rules, 1948" (for short, "the Rules" ). THE reference was made in particular to sub-rules (7) and (9) of that rule. Placing reliance on sub-rule (9) of rule 68 of the Rules, it was also submitted that the legal fiction envisaged thereunder, should be construed in a manner that the receipt of a copy of the order of the Tribunal by the State Representative, was not only a deemed service on the Commissioner but also a deemed service of the order of the Tribunal upon the concerned assessing authority. It may be stated that rule 68 of the Rules provides for procedure for disposal of appeal by the appellate authority or the Tribunal. Sub-rule (7) of rule 68 of the Rules, inter alia, provides that copy of every order under section 10 (order passed by the Tribunal) shall be delivered to or served on the parties concerned free of charge. It is pertinent to mention that in an appeal filed before the Sales Tax Tribunal by an assessee, the Commissioner of Sales Tax is arrayed as a respondent or an opposite party. Sub-rule (9) of the rule 68 of the Rules contemplates that the provisions of rules 77 and 77-A of the Rules shall mutatis mutandis, apply to service of notice, summons order, etc. , under that rule. There is a proviso attached to that sub-rule which reads : ". . . . . . Provided that service on the State Representative shall be deemed to be service on the Commissioner. ";