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TMI Blog1972 (9) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... the turnover at Rs. 2 lacs for each of the two years. The assessee moved two applications under section 30 of the Act for setting aside the ex parte assessment orders. It did not, however, file appeals against the assessment orders under section 9 of the Act. After the applications under section 30 were rejected, the assessee preferred two appeals against the assessment orders, but these appeals were filed beyond time. The assessee also filed appeals against the orders rejecting the applications under section 30. Both these sets of appeals were eventually dismissed. The appeals against the orders under section 30 were dismissed on the ground that the assessee had wilfully failed to appear on the date fixed and the appeals against the ex pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is passed under the U.P. Sales Tax Act, an appeal lies against it under section 9 and if the order is ex parte, section 30 provides an additional remedy by way of an application for setting aside the ex parte order. The two remedies, however, are not mutually exclusive nor consecutive. They are simultaneous. The period of limitation for both the remedies is 30 days from the date of service of the assessment order. If an assessee wants to avail of both the remedies, he must do so within the period of limitation. It is not open to him to pursue one remedy and thereafter to pursue the other and to claim that the time spent in pursuing the first remedy should be excluded from the period of limitation for the second remedy. Section 14(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odified. Thus the relief in the two proceedings are not identical. The application of the assessee under section 30 was entertainable and had been entertained but was dismissed on merits. It was not dismissed for want of jurisdiction or a cause of similar nature. The Full Bench decision of this Court in Commissioner of Sales Tax, U.P. v. Parson Tools and Plants, Kanpur[1971] 27 S.T.C. 73., is clearly distinguishable. There an appeal was dismissed on default under rule 68(5) of the U.P. Sales Tax Rules. An application was made under sub-rule (6) of rule 68 for setting aside the order dismissing the appeal in default. In the meantime, this court held rule 68(5) to be ultra vires. The restoration application was accordingly dismissed on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven under section 5 of the Limitation Act. The learned counsel says that it was the mistaken legal advice which was responsible for the delay and, as such, it should be held to be a sufficient cause. We do not find how the advice given to the assessee was mistaken. Section 30 was clearly applicable and the assessee was properly advised to move an application under that section to have the ex parte order set aside. There is no assertion that the assessee was advised not to file an appeal within the period of limitation. As such, there is no question of the delay having been occasioned by a mistaken legal advice and the delay in filing the appeal, therefore, could not have been excused under section 5 of the Limitation Act. Now the question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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