JUDGMENT
1. This is an application under Section 11 (4) of the U.P. Sales Tax Act, 1948.
2. On 31st March, 1963, the Sales Tax Officer, Banda, passed an ex parte assessment order against the assessee for the assessment year 1958-59. The assessee made an application for setting aside the ex parte assessment order. The Sales Tax Officer was satisfied with the cause shown for the absence of the assessee and on 17th June, 1963, set aside the ex parte assessment order. The Commissioner of Sales Tax felt aggrieved and filed a revision. The Additional Judge (Revisions), Sales Tax, on 5th August, 1966, allowed the revision. He set aside the order restoring the case and at the same time in exercise of his suo motu powers, set aside the original assessment order dated 31st March, 1963, as well and remanded the case for fresh assessment. Aggrieved, the assessee made an application for reference which' has been rejected.
3. In the present application, the assessee wanted eight questions to be referred but at the hearing the learned counsel confined himself to two questions. They are :
1. Whether the fact that the assessment would become time-barred was a relevent consideration, while adjudicating an application under Section 30 of the U.P. Sales Tax Act for setting aside an ex parte order ?
2. Whether the Additional Judge (Revisions) was justified in exercising suo motu powers ?
4. Section 30 of the Act authorises the assessing authority to set aside an ex parte assessment order and reopen the case if it is satisfied that the assessee did not receive notice or was prevented by sufficient cause from appearing on the date fixed. It would be seen that though the grounds upon which the assessing authority can reopen the case are non-receipt of the notice or other sufficient cause which prevented him from appearing on the date fixed, the assessing authority has been given discretion yet to refuse to reopen the case, by providing that if the assessing authority was satisfied that the applicant did not receive notice or was prevented by other sufficient cause from appearing on the date fixed, it "may" set aside the order and reopen the case. The use of the word "may" suggests that the assessing authority is not bound to set aside an order merely because there was sufficient cause for non-appearance on the date of hearing. It could take into consideration other aspects and circumstances attending the particular case.
5. The assessment order was passed on the last date of limitation, namely, 31st March, 1963. Reopening of the proceedings would mean that the Sales Tax Officer would have been disabled to pass a fresh order because of the expiry of the period of limitation of four years. This in our opinion was a relevant circumstance for considering the question whether the ex parte order should be set aside by the Sales Tax Officer. The assessee had an alternative remedy of filing an appeal against the ex parte order and if the circumstances of the case justified, the appellate authority could set aside the ex parte assessment order and direct a fresh assessment to be made by the Sales Tax Officer. In that event the bar of limitation contained in Sub-section (2) of Section 21 would not apply and the Sales Tax Officer could have made a fresh assessment. The relief which the assessee wanted and which is contemplated by Section 30 is that the assessee's default should be condoned and he should be afforded another opportunity to participate in the assessment proceedings and a fresh assessment should be made.
6. But where an order under Section 30 setting aside an ex parte assessment order results in a fresh assessment becoming time-barred, the assessing authority would be justified in refusing the relief under Section 30. In our opinion, the submission that the circumstance that the assessment would become time-barred is not relevant is not correct.
7. As the assessing authority had failed to take into consideration the fact that as a result of the order passed by it under Section 30, a fresh assessment would be barred, the Judge (Revisions) was justified in allowing the revision application of the Commissioner and setting aside the order passed by the Sales Tax Officer under Section 30. The Judge (Revisions) in the exercise of his suo motu power went a step further and set aside the original assessment order and directed the Sales Tax Officer to make a fresh assessment. The Judge (Revisions) obviously exercised his suo motu power in favour of the assessee and the assessee can have no grievance against it. As a result of the order passed by the Judge (Revisions) in the exercise of his suo motu power, the assessee got the relief to which he was entitled and at the same time the interest of the revenue was protected inasmuch as a fresh assessment could be made without the bar of limitation contained in Section 21(2). On the facts and circumstances of the case, it cannot be held that the Revising Authority was not justified in exercising its suo motu power.
8. The two questions raised by the assessee may be questions of law, but as the answer to these questions is obvious and admits of no doubt whatsoever, we do not think that it is a fit case in which we should call for a statement of the same.
9. The application is dismissed with costs which we assess at Rs. 50.