TMI Blog1973 (4) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 21 had become time-barred." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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. On behalf of the assessee it was contended that as the appeal against the order under section 21 has not been decided on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice 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 section 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. We accordingly do not return any answer to question No. (2) and answer question No. (1) in the affirmative in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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