TMI Blog1973 (11) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The appeals against the order under section 30 were dismissed on the ground that the petitioner had wilfully failed to appear on the date fixed and the appeals against the ex Parte assessments were dismissed on the ground that they were barred by time. The petitioner seems to have contended before the appellate authority that in computing the period of limitation for appeals, the time spent by it In prosecuting the proceedings under section 30 should have been excluded either under section 14 or under section 5 of the Limitation Act. This contention was not accepted by the appellate authority, nor was it accepted by the judge (Revisions). Before the Judge (Revisions) it was contended that the assessment of the turnover at rupees two lacs fixed for each year was arbitrary and without any material. The Judge (Revisions) disposed of these grounds in the following words: "When the four revisions were heard, in view of the gap between the assessee's estimates and the estimates of the S.T.O., I felt inclined to allow the revisions so that the assessee could be given an opportunity to place its version before the assessing authority. At that time I was not given any indication that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not Rs. 1,50,000. Thus the basis upon which the revising authority proceeded to confirm the assessment has turned out to be erroneous. Moreover, the assessment for the year 1965-66 was then pending in revision before the Judge (Revisions). He has since set it aside and remanded the case to the Sales Tax Officer for a fresh assessment. Thus the very basis upon which the two assessments in question have been affirmed has disappeared. There is no other material upon which the assessments can be justified." After the reference had been answered the revising authority was required to pass an order under section 11(6) of the Act In conformity with the judgment of this court. The obvious thing for him to do was to modify the revisional order by making a proper assessment of the turnover in place of the assessment of Rs. 2,00,000, which was found by this court to be without any basis or material. But the revising authority felt that no relief could be allowed to the petitioner because the order passed by the appellate authority rejecting the assessee's appeals had become final. He accordingly passed a queer order under section 11(6). In place of the paragraph dealing with the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be held that the petitioner's appeals were rightly rejected as time-barred. In such circumstances, question No. (1) would not have survived. But, as no objection was taken by the department at the time of the hearing of the reference, question No. (1), which related to the quantum, was also answered by this court and the answer was in favour of the assessee. After this court had answered question No. (1), the revising authority could not ignore the answer. However, the revising authority was not in a happy position inasmuch as It had to dispose of the case in conformity with the answer given by this court to all the three questions, and as a result of the answer to questions Nos. (2) and (3), the petitioner's revision petition had to be dismissed as time-barred. In these circumstances, we allowed the assessee to amend the petition and pray for the quashing of the assessment orders. The learned standing counsel contends that the assessment orders cannot be quashed because they have merged in the appellate orders which in turn have merged in the revisional orders. This argument does not present much difficulty Inasmuch as the appellate and the revisional orders can also be quas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enivasalu Naidu v. Commissioner of Income-tax, Madras[1948] 16 I.T.R. 341. and jagmohandas Gokaldas v. Commissioner of Wealth-tax, Bombay[1963] 50 I.T.R. 578. The principle underlying these cases is the same, namely, that an order does not merge In an appellate order, if the appeal is dismissed as time-barred or on similar other preliminary grounds. The learned counsel then contended that after a reference under section 11 of the U.P. Sales Tax Act this court was not competent to entertain a writ petition under article 226 of the Constitution against the assessment orders. In support of this contention he has placed reliance upon a decision of the Supreme Court In Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya BapatA.I.R. 1970 S.C. 1. In that case a question arose as to whether the High Court could interfere under article 226 or 227 of the Constitution with the order of the appellate court in a proceeding under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, when a revision petition under section 115, C.P.C., against the same order had previously been dismissed by the High Court. The Supreme Court answered the question in the negative on the ground that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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