- (1.) Heard learned counsels for parties and perused the record.
(2.) In this case, an ex-parte assessment was made vide order dated 20.03.1998 in respect to Assessment Year 1995-96. Petitioner filed an application under Section 30 of U.P. Trade Tax Act, 1948 (hereinafter referred to as "Act, 1948") for setting aside ex-parte order but the same was rejected by Assessing Officer by order dated 28.11.1998. There against appeal was preferred by petitioner before Joint Commissioner (Appeals)-3, Trade Tax, Lucknow under Section 9(2) which was beyond period of limitation. Joint Commissioner did not condone delay and dismissed appeal on the ground of limitation by order dated 30.07.2003. There against petitioner preferred an appeal before Tribunal which was also barred by limitation and here also his application seeking condonation of delay was rejected by Tribunal. In the meantime, petitioner being a sick unit approached Board for Industrial and Financial Reconstruction (hereinafter referred to as "BIFR") who passed a Scheme and thereupon petitioner moved an application under Section 38 before State Government for deferring recovery of tax. State Government passed an order dated 27.09.2001 deferring recovery of trade tax for a period of five years. Petitioner also moved an application under Section 38(2) of Act, 1948 requesting State Government to set aside ex-parte assessment order dated 20.03.1998 but the said application has been rejected by impugned order dated 07.06.2005 on the ground that the ex-parte assessment order was appealed and since appeal has been rejected, hence, it has merged in the appellate order, therefore, cannot be set aside under Section 38(2) which empowers State Government only to set aside ex-parte assessment order.
(3.) Counsel for petitioner submitted that appeal was dismissed on the ground of limitation, meaning thereby no appeal was pending either before Joint Commissioner or the Tribunal and delay condonation application was dismissed, hence appeal was dismissed on the ground of limitation. In these circumstances, doctrine of merger has no application. He placed reliance on Chandi Prasad and others v. Jagdish Prasad and others 2004 (8) SCC 724 and State of Kerala and another v. Kondottyparambanmoosa and others JT 2008 (9) SC 289.;