GAUTI BANDHU Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) The assessee was carrying on the business of purchases of foodgrains and oil-seeds on behalf of the ex-U. P. principals and also under its own account. The disclosed turnover for the assessment year 1973-74 was rejected by the assessing authority. The first appeal filed by the assessee was allowed and the matter was sent back to the assessing authority for a fresh assessment. After remand the assessment order was passed ex parte. Aggrieved against the said order the assessee preferred a first appeal before the Assistant Commissioner (Judicial) who allowed the appeal and while allowing the appeal he also directed the refund of the excess tax, if any, deposited by the assessee. The Revenue feeling aggrieved preferred a second appeal under Section 10 of the U. P. Sales Tax Act (hereinafter referred to as "the Act") before the Tribunal which allowed the appeal. Being aggrieved against the aforesaid order of the Tribunal the assessee has come to this Court in the instant revision under Section 11(1) of the Act.

(2.) I have heard learned counsel for the parties. Mr. Bharatji Agarwal, learned counsel for the assessee, contended that the appeal filed by the Revenue against the order of the Assistant Commissioner (Judicial) was barred by time. In support of his contention he invited my attention to the memo of appeal, copy of which is annexure 2 to the revision, wherein there is a note that the appeal filed by the department is time-barred. Apart from this fact he also invited my attention to paragraphs Nos. 19 and 21 of the revision in which it has been stated that in spite of the fact that the appeal was barred by time and though this ground was specifically raised before the Tribunal it did not record any finding whatsoever.

(3.) Mr. P. K. Jain, learned counsel appearing for the Revenue, on the other hand has contended that since it has not been alleged that the copy of the order of the Assistant Commissioner (Judicial) was served on the Commissioner of Sales Tax or his representative within time, it was not necessary for the Tribunal to have decided that question. I am not inclined to accept the said contention. Once a plea is raised by the assessee that the appeal filed by the Revenue is barred by time, the Tribunal is supposed to record a finding. It is open to the Tribunal to accept or not to accept the plea raised but once the plea of limitation has been raised, in my opinion, the Tribunal in not deciding the said plea has failed to exercise jurisdiction vested in it by law and the order passed by it cannot be sustained.