Jagdish Sahai, J.
1. The questionreferred to this Full Bench by a Division Bench of this Court is:--
'Whether on the facts and in the circumstances of the case the question whether a revision application under Section 10 (3) of the U. P. Sale Tax Act was rightly dismissed as barred by limitation can be referred to this Court under Section 11 of that Act?'
2. M/s. Badri Prasad Ayodhya Prasad were assessed to sales tax. They filed two appeals; one against the exemption order and the other against the assessment order. Their prayer was that they were entitled to get exemption on the turnover of food-grains for the entire year or at least from. 30-7-1958. They challenged the assessment order on the ground that the tax determined was excessive. The two appeals were disposed of on 30th of April, 1961. M/s. Badri Prasad Ayodhya Prasad filed two revision applications before the Additional Judge (Revisions) on 23-6-1984 challenging the appellate orders passed by the appellate authority on 30th of April, 1961.
3. The delay in the filing of the revision applications was explained by the aforesaid assessee by saying that they did not receive copies of the appellate order and that they received the certified copies only on 12-6-1964 after they had applied for the same on 4th of June, 1964.
4. The Additional Judge (Revisions) Sales Tax, dismissed both the revision applications as barred by time. Thereafter M/s. Badri Prasad Ayodhya Prasad filed an application before the Additional Judge (Revisions) under Section 11 (1) of the U. P. Sales Tax Act (hereinafter referred to as the Act) for referring certain questions of law to this Court. The Additional Judge (Revisions) dismissed the application following the decision of this Court in Sukhan Lal Amar Nath v. Commr. of Sales Tax, S. T. R. No. 556 of 1961, D/- 18-2-1963 (All), holding 'that no reference can be made when the revision is dismissed on ground of limitation,' Thereafter M/s. Badri Prasad Ayodhya Prasad filed an application under Section 11 (4) for calling a statement of case and for the submission of certain questions of law by the Additional Judge (Revisions) to this Court for its opinion.
5. The applications came up for hearing before a Bench of this Court which was of the opinion that the decision in S. T. R. No. 556 of 1961, D/- 18-2-1963 (All) (Supra) 'calls for reconsideration.'
6. Having heard the learned counsel for the parties I am of the opinion that the question whether or not an application under Section 10 (3) of the Act was rightly dismissed as barred by limitation is a question of law arising out of the order of the Judge (Revisions).
7. My reasons are as follows:--
8. The question of limitation can be decided only by applying the law relating to limitation provided by the Act dealing with the matter. The question of limitation is, therefore, one of law.
9. Sections 10 (3) (i) and 10 (3-B) of the Act read:--
10(3)(i). 'The Revising Authority or any Additional Revising Authority may, for the purposes of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in its discretion, call for and examine either on its own motion or on the application of the Commissioner of Sales Tax or the person aggrieved, the record of such order and pass such order as it may think fit. ..................'
10(3-B). 'The application under Sub-section (3) shall be made within one year from the date of service of the order complained of but the Revising Authority may on proof of sufficient cause entertain an application within a further period of six months.'
10. It has been contended that the Judge (Revisions) can pass an order under Section 10 (3) (i) of the Act only if he has entertained the revision application considering the same to be within limitation The submission is that a reference can be made to this Court by the revising authority only if the question of law arises out of the order passed under Section 10 (3) (i) of the Act and that inasmuch as the question of limitation would have been decided earlier, the question of limitation cannot be said to arise out of the order passed under Section 10 (3) (i) of the Act For this reliance is placed upon S. T. R No. 556 of 1961, D/- 18-2-1963 (Am (Supra). Desai, C. J., who spoke for the Court observed as follows:--
'The Judge (Revisions) had no jurisdiction to refer the question because even inwhether the cause made out by the assessee was sufficient or not were a question of law, it was not one arising out of an order referred to in Section 10 (3) The scheme of Sections 10 and 11 is this By Sub-section (3) (i) of the Judge (Revisions) is given power, either on his own motion or on an application of the person aggrieved, to call for and examine the record of any order made by an assessing authority and pass such order as it may think fit............... An application by theperson aggrieved is required to be made, vide Section 3 (B), within one year or if the Judge (Revisions) allows for sufficient cause, within one and a half years...........An order under Sub-section (3) (i) can be passed by him only after he calls for the record and he can call for the record only after he has entertained the application, if made more than a year from the date of the impugned order, on sufficient cause being shown. Sub-section (3-A) requires that a copy of the order passed by hire under Sub-section (3) must be served upon the applicant and an application under Section 11 (1) is to be made within 126 days from the date of this service of theorder. Not only must the application be made within this period but also it must be for reference of a question of law arising out of that very order. It is, therefore, clear that if an application is time-barred and is rejected on that ground there can be no order contemplated by Section 10 (3), and no service of any order under Sub-section (3-A) and therefore, no application under Section 11 (1).'
With great respect to Desai, C. J. I find myself in disagreement. Even an order dismissing the revision application on the ground of being barred by limitation would be passed under Section 10 (3) (i). Section 10 (3-B) only provides the period of limitation and does not require an order to be passed under that provision dismissing a revision application if it is time barred by limitation. The only provision which deals with the orders passed by the revising authority is Section 10 (3) (i).
I am, therefore, of the opinion that even when an application is dismissed as barred by limitation it would be an order under Section 10 (3) (i) and the question of limitation would arise out of an order passed by the revising authority under that section. The view that I am taking finds support from Mela Ram and Sons v. Commr. of Income-tax, Punjab : 29ITR607(SC) where it was held by the Supreme Court that an order by the Appellate Assistant Commissioner holding that there was no sufficient reason for excusing delay under Section 30(2) of the Income-tax Act and rejecting the appeal as time-barred is an order passed under Section 31 and an appeal lies from that order to the Appellate Tribunal.
11. In my opinion, therefore, STR 556 of 1961, D/- 18-2-1963 (All) (Supra) does not lay down correct law.
12. I answer the question referred to us by saying that the question whether a revision application under Section 10 (3) of the Act was rightly dismissed as barred by limitation is a question of law arising out of the order of the Tribunal passed under Section 10 (3) (i) of the Act and for that reason a reference can be made by the revising authority to this Court under Section 11 of the Act. T would direct the parties to bear their own costs.
Satish Chandra, J.
13. I agree.
14. I agree.