JUDGMENT Anshuman Singh, J.
1. This revision application is directed against the order dated April 23, 1985, passed by the Sales Tax Tribunal, Saharanpur, relating to assessment year 1978-79.
2. The applicant is a registered dealer and carrying on the business of shoes and general merchandise goods. The assessing authority by an order dated January 20, 1982, rejected the books of account and enhanced the turnover. The aforesaid order dated January 20, 1982, was served on the assessee on January 25, 1982. Under Section 9 any dealer or other person aggrieved by an order made by the assessing authority, other than an order mentioned in Section 10-A, may, within thirty days from the date of service of the copy of the order, appeal before the Assistant Commissioner (Judicial), Sales Tax. There is no dispute in this case on the point that no appeal was filed by the assessee within the stipulated period of thirty days from the date of service of the assessment order, i.e., 25th January, 1982. It appears that the assessee moved an application under Section 22 of the U.P. Sales Tax Act (hereinafter referred to as the Act) on 1st March; 1982, before the assessing authority. In the said application mistake pointed out by the assessee was rectified by an order dated 31st August, 1982. The assessee after the aforesaid order on the application under Section 22 of the Act in its favour preferred an appeal on 5th October, 1982, challenging the assessment order dated January 20, 1982, which was served on it on January 25, 1982, before the Assistant Commissioner (Judicial) who rejected the appeal of the assessee as barred by time. The assessee feeling dissatisfied by the said order of the Assistant Commissioner (Judicial) preferred a second appeal before the Tribunal which too rejected the appeal and maintained the order passed by the Assistant Commissioner (Judicial).
3. I have heard Sri Rajesh Kumar, learned counsel for the assessee and Sri P.K. Jain, learned counsel for the department. Mr. Rajesh Kumar has submitted that the Tribunal committed an error in holding that the appeal filed by the assessee before the Assistant Commissioner (Judicial) was barred by time. In support of his submission he contended that since the original assessment order dated January 20, 1982, was rectified under Section 22 of the Act on August 31, 1982, the order of assessment merged into the order passed under Section 22 of the Act and the period of limitation for filing the appeal will run from the date of the order passed under Section 22 of the Act. He submits that since the order dated August 31, 1982, was served on it on September 12, 1982 and the appeal having been filed by it on October 5, 1982, the same was within time.
4. Before deciding the controversy involved in the instant revision it is necessary to refer to certain provisions of the Act. Under Section 7 of the Act an assessment order is passed by the assessing authority. Section 9 of the Act provides right of appeal to an assessee against the order of assessment and reads as under :
Any dealer or other person aggrieved by an order made by the assessing authority, other than an order mentioned in Section 10-A, may, within thirty days from the date of service of the copy of the order, appeal to such authority as may be prescribed.
5. In the instant case the assessee-applicant though was aggrieved by the order of the assessing authority but did not avail the right of appeal, which was a substantive light under Section 9 of the Act within a prescribed period of thirty days, instead it preferred to file an application under Section 22 of the Act for rectification of certain mistakes in the assessment order which was allowed. Still the assessee did not feel satisfied by the order of rectification passed under Section 22 of the Act and challenged the assessment order on merit by filing an appeal under Section 9 of the Act. In support of his contention learned counsel for the assessee has relied on a decision of this Court in Karam Chand Thapar and Brothers v. State of U.P. 1975 UPTC 11. In that case it was observed as under:
This clearly indicates the legislative intention, viz., that in a case where a rectification contemplated by Section 22 resulting in enhancement of assessment has been carried out a fresh notice of demand is to be served on the assessee and thereupon the assessee will have all the rights in respect of the rectified assessment order as he had in respect of the original assessment as if the assessment order had been made for the first time and the original assessment had not been made. Consequently, under Section 9(1) of the Act, he would have a right to file an appeal against the rectified assessment but no appeal has been provided against the act of rectifying an order (popularly called rectification order) as such. The limitation for filing an appeal against the rectified assessment order is to commence from the date on which it is served upon the dealer.
6. In the aforesaid case the Sales Tax Officer on the basis of certain pronouncement made by this Court issued notice under Section 22 of the Act to the petitioner whereas in the instant case the assessee itself moved an application under Section 22 of the Act. Moreover, in the case of Karam Chand Thapar 1975 UPTC 11 the rectification resulted in the enhancement of turnover and in that context this Court took the view that since the order of rectification resulted in the enhancement of original assessment and no remedy having been provided for filing an appeal against the order passed under Section 22 of the Act, the rectification order which enhanced the assessment would be an appealable order under Section 9(1) of the Act. In the case in hand no appeal was filed by the assessee against the original assessment order within a period of thirty days. The assessee filed an application under Section 22 of the Act and the rectification sought was allowed in its favour. In case it was dissatisfied against the order passed under Section 22 of the Act it could have challenged that order under Section 9(1) of the Act by way of appeal and not the original assessment order dated January 20, 1982. In this view of the matter the case Karam Chand Thapar 1975 UPTC 11 is clearly distinguishable and is of no assistance to the assessee.
7. In view of the aforesaid discussion I am of the view that the date of limitation for filing an appeal would not run in the instant case from the date of passing of the order under Section 22 of the Act but it started on the date of service of the original assessment order and the assessee having failed to prefer an appeal under Section 9 of the Act within a period of thirty days from the date of service of the original assessment order, the Tribunal was fully justified in holding that the appeal filed by the assessee before the Assistant Commissioner (Judicial) was barred by time.
8. Mr. Rajesh Kumar, learned counsel for the assessee, lastly submitted that an application for condonation of delay was also filed before the Assistant Commissioner (Judicial) and the same was illegally rejected. I have perused the order passed by the Tribunal and it has recorded a categorical finding that the assessee intentionally delayed the filing of appeal and as such it was not entitled to the benefit of Section 5 of the Indian Limitation Act. Granting of relief under Section 5 of the Indian Limitation Act is a discretionary matter. It is true that the discretion has to be exercised judicially and not arbitrarily but in the circumstances of the case the exercise of power under Section 5 of the Indian Limitation Act on the basis of a positive finding does not appear to be arbitrary.
9. In the result the revision fails and is accordingly dismissed. However, there will be no order as to costs.