SHARMA BOOT HOUSE Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) This revision application is directed against the order dated April 23, 1985, passed by the Sales Tax Tribunal, Saharanpur, relating to assessment year 1978-79.

(2.) The applicant is a registered dealer and carrying on the business of shoes and general merchandise goods. The assessing authority by an order dated January 20, 1982, rejected the books of account and enhanced the turnover. The aforesaid order dated January 20, 1982, was served on the assessee on January 25, 1982. Under Section 9 any dealer or other person aggrieved by an order made by the assessing authority, other than an order mentioned in Section 10-A, may, within thirty days from the date of service of the copy of the order, appeal before the Assistant Commissioner (Judicial), Sales Tax. There is no dispute in this case on the point that no appeal was filed by the assessee within the stipulated period of thirty days from the date of service of the assessment order, i.e., 25th January, 1982. It appears that the assessee moved an application under Section 22 of the U.P. Sales Tax Act (hereinafter referred to as the Act) on 1st March; 1982, before the assessing authority. In the said application mistake pointed out by the assessee was rectified by an order dated 31st August, 1982. The assessee after the aforesaid order on the application under Section 22 of the Act in its favour preferred an appeal on 5th October, 1982, challenging the assessment order dated January 20, 1982, which was served on it on January 25, 1982, before the Assistant Commissioner (Judicial) who rejected the appeal of the assessee as barred by time. The assessee feeling dissatisfied by the said order of the Assistant Commissioner (Judicial) preferred a second appeal before the Tribunal which too rejected the appeal and maintained the order passed by the Assistant Commissioner (Judicial).

(3.) I have heard Sri Rajesh Kumar, learned counsel for the assessee and Sri P.K. Jain, learned counsel for the department. Mr. Rajesh Kumar has submitted that the Tribunal committed an error in holding that the appeal filed by the assessee before the Assistant Commissioner (Judicial) was barred by time. In support of his submission he contended that since the original assessment order dated January 20, 1982, was rectified under Section 22 of the Act on August 31, 1982, the order of assessment merged into the order passed under Section 22 of the Act and the period of limitation for filing the appeal will run from the date of the order passed under Section 22 of the Act. He submits that since the order dated August 31, 1982, was served on it on September 12, 1982 and the appeal having been filed by it on October 5, 1982, the same was within time.