R.L. Gulati, J.
1. This is a reference under Section 11(3) of the U.P. Sales Tax Act at the instance of the Commissioner of Sales Tax, U.P., Lucknow.
2. An assessment was made against the assessee for the year 1958-59 under Section 7 of the U.P. Sales Tax Act on its turnover of bullion and ornaments. Subsequently, the Sales Tax Officer received information that during the assessment year in question the assessee had sold foodgrains through a commission agent and finding that such turnover had not been included in the assessment, he reopened the assessment by a notice under Section 21 of the Act which was served upon the assessee on 21st March, 1963. An ex parte assessment was made on 27th March, 1963. The assessee appealed against the assessment order as well as made an application under Section 30 for setting aside the ex parte assessment order and for making a fresh assessment. The assessee's appeal was not entertained by the appellate authority on the ground that the memorandum of appeal was not accompanied by the proof of payment of the admitted tax. The appeal was rejected by an order dated 9th July, 1963. The application under Section 30 was rejected by the Sales Tax Officer on 26th December, 1963. Thereupon the assessee filed an appeal against the order rejecting its application under Section 30. The appellate authority found that there was sufficient cause for the non-appearance of the assessee before the Sales Tax Officer and as such the ex parte assessment was not justified. By his order dated 19th May, 1965, he set aside the ex parte assessment order and directed the Sales Tax Officer to make a fresh assessment after giving to the assessee a reasonable opportunity of being heard.
3. One of the contentions raised before the appellate authority on behalf of the department was that the assessee's appeal on merits having already been dismissed, the appeal against the order under Section 30 was not maintainable, as the order passed in appeal against the assessment under Section 21 would be rendered infructuous, if the appeal against the order under Section 30 was allowed. This contention was overruled by the appellate authority. The Commissioner went up in revision which has been dismissed. Hence this reference.
4. The following two questions have been referred for the opinion of this court:
(1) Whether, in the facts and circumstances of the case, the case could be reopened under Section 30, when an appeal had been dismissed for not filing proof of payment of the admitted tax as provided in proviso to Section 9 of the U.P. Sales Tax Act, 1948.
(2) Whether, in the facts and circumstances of the case, the case under Section 21 could be reopened under Section 30, when the assessment under Section 21 had become time-barred.
5. It is contended by the learned counsel for the State that after the assessee's appeal against the assessment order had been dismissed by the appellate authority, its appeal against the order under Section 30 had become infructuous, inasmuch as the assessment order had merged in the order of the appellate authority and had become final. We find no force in this contention. When an ex parte assessment order is passed, the law provides two remedies against it: (i) an appeal against the assessment order under Section 9 to the appellate authority, and (ii) an application under Section 30 to the Sales Tax Officer to set aside the ex parte assessment order and reopen the case, if the assessing authority is satisfied that the assessee did not receive notice or was prevented by sufficient cause from being present on the date fixed.
6. Now, an ex parte assessment order is always in two parts. The first part relates to the propriety of the ex parte order and the second part relates to the quantum of the turnover and the tax assessed. When the law provides two separate remedies against the two limbs of the assessment order, the two reliefs cannot be merged in one appeal. An appeal under Section 9 against the assessment order would, in the circumstances, be limited to the quantum of turnover or the tax. No relief can be claimed in that appeal against the ex parte proceedings either on the ground that the assessee had received no notice or that he had been prevented by sufficient cause from putting in appearance on the date fixed. Such relief can be claimed only under Section 30. Thus, when the assessee's appeal against the quantum was dismissed, it could not be said that the question as to whether the ex parte assessment was justified or not had also been decided by the appellate authority. The assessee had no right to claim such a relief and the appellate authority had no jurisdiction to decide any such question. Therefore, it cannot be said that the ex parte assessment order of the Sales Tax Officer had merged in the order of the appellate authority when passed on the assessee's appeal against the quantum.
7. Similar provisions exist in the Income-tax Act, 1922. Section 27 provides for an application for setting aside an ex parte assessment order and Section 30 provides for an appeal against the quantum of tax. It has been held in numerous cases under the Income-tax Act that the two reliefs are mutually exclusive and both of them cannot be agitated either under Section 30 or under Section 27: see Sir Padampat Singhania v. Commissioner of Income-tax [1953] 24 I.T.R. 141, Chhotelal Gobardhan Das v. Commissioner of Income-tax [1953] 23 I.T.R. 272, Nabha Kumar Singh Dudhuria v. Commissioner of Income-tax [1944] 12 I.T.R. 327 and Gaurishanker Kedia v. Commissioner of Income-tax [1963] 49 I.T.R. 655.
8. On behalf of the assessee it was contended that as the appeal against the order under Section 21 has not been decided on merits but has been dismissed as incompetent, there could not be any merger of the assessment order in the appellate order. There is a good deal of force in this contention. But, as we have already held that even if an appeal against an ex parte assessment order is decided on merits, it does not in any way affect the question of the propriety of the ex parte proceedings which can be agitated only under Section 30 and thereafter by an appeal against the order under Section 30 refusing to reopen the assessment. The two proceedings are parallel and there is no question of their merger with each other. The cases relied upon by the learned standing counsel relating to the merger of the original order with the appellate order are, therefore, not relevant at all. This disposes of the first question.
9. As regards the second question, there appears to be some misconception. This question proceeds on the assumption that the fresh assessment would be time-barred and, as such, the ex parte assessment order could not be set aside. In the first place, no such question appears to have been raised before the appellate authority or the Judge (Revisions) and, in any case, the situation contemplated by the department does not arise in the instant case. Under Section 21(2), a regular assessment order should be passed within four years from the end of the assessment year, and under the first proviso in the case of an order under Section 21, a further period of one year is allowed from the date of service of the notice under that section. But under the second proviso, there is no period of limitation for an assessment or reassessment to be made in consequence of or to give effect to any order or direction contained in Sec. tion 9, 10 or 11. In the instant case, the ex parte assessment order was set aside not by the Sales Tax Officer, but by the appellate authority and, as such, there was no period, of limitation for making a reassessment. The question is thus misconceived. The decision of this court in Gulabchand Munishkisore v. Commissioner of Sales Tax, U.P., Lucknow [1970] 26 S.T.C. 205, is, therefore, not relevant.
10. We accordingly do not return any answer to question No. (2) and answer question No. (1) in the affirmative in favour of the assessee and against the department. The assessee is entitled to the costs which we assess at Rs. 100.