9911796707
TMI Blog1970 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee who is a dealer in foodgrains and oil-seeds was assessed under the U.P. Sales Tax Act for the year 1959-60 by an ex Parte order dated 26th November, 1962. The assessee moved an application under section 30 of the Act for setting aside the assessment order and making a fresh assessment on the ground that he could not attend on the appointed date because of his illness. The application was, however, rejected initially on the ground that the assessee had not paid the admitted tax. The matter, however, was remanded by the Assistant Commissioner (Judicial) on the ground that the application had been rejected by the Sales Tax Officer without giving a proper opportunity to the assessee to explain the case. On remand the Sales Tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order and remanded the case back to the Sales Tax Officer to dispose of the assessee's application under section 30 afresh. It appears that an objection was raised on behalf of the department before the Judge (Revisions) that as the assessee had not filed an application for revision of the appellate order confirming the assessment, the assessment had become final and as such the assessee's revision directed against the proceedings under section 30 had become infructuous. The Judge (Revisions) overruled this objection and held that the remedy under section 30 was different from the remedy by way of an appeal against the assessment order under section 9 of the Act. Accordingly the revision application of the assessee was maintainable. He, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had not preferred a separate revision petition against the appellate order relating to assessment. The Judge (Revisions) was satisfied that the interests of justice required that the appellate order should be set aside and he acted within his jurisdiction in doing so. Once he had decided to allow the application under section 30 and quash the assessment order and so reopen the assessment proceeding, to make that decision effective, it was necessary that the appellate order confirming the assessment order should also be set aside. The other point raised by the learned counsel is that the order which has been set aside by the Judge (Revisions) was not a part of the record before him. Learned counsel states that the only record before him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the law and if the law requires that before passing an order in the exercise of the suo motu power under section 10, he must call for the relevant record the presumption is that he must have done so. Moreover, there is nothing on the record to show that there were in fact two records, one relating to the assessment and the other relating to the proceedings under section 30. Normally there is only one assessment record which also contains the record relating to any proceedings arising out of or connected with the assessment. However, it is not necessary for us to examine this aspect any more, because such a question does not arise out of the revisional order and has not been referred to us. It is settled law that in a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be said to have merged into an assessment order. There is no such question in the instant case. It is nobody's case that the assessment order had merged into the order under section 30 or that the order passed by the appellate authority against the order under section 30 also included in it the order relating to the assessment. In fact the Judge (Revisions) treated the two proceedings separately and therefore he took care to set aside both the orders. It is difficult to understand as to how the Supreme Court case can have any relation to the facts of the present case. The other decision relied upon by the learned counsel is the State of Madras v. Madurai Mills Co. Ltd.[1967] 19 S.T.C. 144 (S.C.). There also the question was en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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