H.N. Seth, J.
1. At the instance of the Commissioner of Sales Tax, this Court by its order dated 11th February, 1972, directed the Additional Revising Authority, Sales Tax., Varanasi, to state the case and to refer the following question of law for its opinion:
Whether, on the facts and in the circumstances of the case, it was competent for the Additional Revising Authority, Varanasi, to hear and decide the assessee's revision application against a provisional assessment after the final assessment order has been made
2. The matter concerns the provisional assessment of the assessee, M/s. Shyam Lal Dina Nath, for the first two quarters ending 30th September, 1965, of the assessment year 1965-86. While the assessee claimed to be merely a taula (weighman) the Sales Tax Officer treating it to be a commission agent and by applying best judgment determined its provisional turnover for the two quarters as Rs. 1,00,000. After making the aforesaid provisional assessment, the Sales Tax Officer issued demand notices which were served upon the assessee on 12th March, 1968. The assessee's appeal against the aforesaid provisional assessment order dated 19t.h March, 1966, was dismissed and it took the matter up in revision before the revising authority, which, on 27th February, 1970, allowed the revision holding that on the basis of material available on the record at that stage, the assessee could not be held to be a dealer liable to pay sales tax. It appears that after the assessee's appeal against its provisional assessment was dismissed, but before its revision was allowed on 27th February, 1970, the Sales Tax Officer by his order dated 30th September, 1969, made a regular assessment on the basis that it was a dealer whose turnover was liable to tax. At the time of the hearing of the revision arising out of the provisional assessment proceedings, it was urged on behalf of the Commissioner that as the final assessment had already been made, the provisional assessment order, which was the subject-matter of the revisional proceedings, had merged in the final assessment order. Accordingly, the revision application filed by the assessee ceased to be maintainable. The Judge (Revisions) did not accept this plea and went into the merits of the case and allowed the revision application. Subsequently, at the instance of the Commissioner of Sales Tax, this Court directed the Additional Revising Authority, Varanasi, to state the case and refer the question of law as aforesaid.
3. Section 10(3) of the U. P. Sales Tax Act enables the revising authority or the additional revising authority either suo motu or at the instance of the Commissioner of Sales Tax or of any person aggrieved to call for and examine the relevant record for the purpose of satisfying itself about the legality or propriety of an order made by the appellate or assessing authority and then to pass such order as it may think proper in the circumstances. It is thus obvious that the additional revising authority had the jurisdiction to call for the record of the appeal arising out of the proceedings for provisional assessment and to test the propriety or legality of that appellate order and, thereafter, to pass an appropriate order which the circumstances of the case require. There is nothing in the section to indicate that the jurisdiction of the revising authority to call for and examine the records of the provisional assessment proceedings and to make appropriate orders thereon is ousted merely because subsequently final assessment order has been made. According to the Rules framed under the U P. Sales Tax Act, every dealer has to file quarterly return of his turnover by a specified date and to deposit the tax on the turnover indicated therein. After the end of the year the Sales Tax Officer is to make an assessment after making such enquiry as he may think proper. The Rules further provide that if the periodical returns are not filed by the specified dates, the Sales Tax Officer can, after making such enquiry as he likes, determine the dealer's turnover to the best of his judgment and to provisionally assess him to tax and to demand the same. Even in cases where such a provisional assessment is made, the Rules contemplate regular assessment at the end of the year and for adjustment of tax realised as a result of such provisional assessment. The provisional assessment is made on the basis of the material available and collected at the time of making such assessment whereas final or regular assessment is made at the end of the year on the basis of material collected and made available by that time. While making the final assessment, the Sales Tax Officer is not bound by what had been decided in the provisional assessment proceedings, as by the time regular assessment is made, additional material may become available to the Sales Tax Officer which may oblige him to assess a particular assessee in a different manner. However, the provisional assessment order may lead to certain consequences like penalty and, even though after regular assessment is made, the provisional assessment order may not be enforceable as such, those consequences might still continue to operate to the assessee's detriment and may not be arrested merely because final assessment has been made. Accordingly there is no reason why the statute should be so construed as to take away the jurisdiction of the revising authority thereby preventing it from making a just order.
4. It Ss significant to note that the power conferred on the revising authority is a discretionary power. Accordingly, if the revising authority comes to the conclusion that the interference with the provisional assessment order will not provide to the aggrieved party some practical relief, it may in its discretion refuse to exercise that power, but then this does not mean that in every case where a final assessment order is made, the assessee does not stand in need of a relief with regard to the orders passed during the proceedings for making provisional assessment and that the revising authority loses jurisdiction to deal with the matter under Section 10(3) of the U. P. Sales Tax Act. In this reference we are not so much concerned with the propriety of the order made in exercise of its power under Section 10(3) of the Act by the additional revising authority as with the maintainability of the revision application arising out of orders made during the proceedings for provisional assessment after regular assessment order has been made. As stated earlier, making of the final assessment order does not deprive the additional revising authority of its jurisdiction under Section 10(3) to deal with the revision arising out of proceedings for provisional assessment. It is a different matter that considering the circumstances of a particular case, the revising authority may choose not to exercise its discretionary jurisdiction merely for academic purposes.
5. In the result, the question referred to us is answered in the affirmative and in favour of the assessee. The assessee will be entitled to receive costs of this reference which we assess at Rs. 100.