R.L. Gulati, J.
1. In compliance with the directions of this court under Section 11(4) of the U.P. Sales Tax Act, the Judge (Revisions), Sales Tax, U. P., Lucknow, has submitted this statement of the case for the opinion of this court on the following questions of law :
(1) Whether on the facts and in the circumstances of the case, when the notice under Section 21 of the U.P. Sales Tax Act was issued by the Assistant Sales Tax Officer, the assessment could have been completed by the Sales Tax Officer ?
(2) Whether on the facts and in the circumstances of the case, the transfer of the case by the Assistant Sales Tax Officer to the Sales Tax Officer was valid in law ?
(3) Whether on the facts and in the circumstances of the case, the assessment order purporting to be under Section 21 of the U.P. Sales Tax Act could be treated as one under Section 7(3) of the Act?
2. The assessee is a dealer in cloth at Kanpur. As the assessee did not file a return of its turnover for the assessment year 1948-49, a notice under Section 21 was issued to it. The notice was issued by the Assistant Sales Tax Officer of the circle where the head office of the assessee was situated. As the turnover of the assessee was found to be over Rs. 40,000.00, the Assistant Sales Tax Officer transferred the case to the Sales Tax Officer for assessment. The assessee produced its accounts which were not accepted and a best judgment assessment was made by the Sales Tax Officer fixing a turnover of Rs. 1,00,00,000. The assessee appealed on the grounds amongst others that the notice under Section 21 was not proper and the proceedings under Section 21 were without jurisdiction. The appellate court, however, held that the best judgment assessment was not justified. He, accordingly, set aside the assessment order and remanded the case for a fresh assessment. After the order of remand, the Sales Tax Officer again scrutinised the case and determined the taxable turnover to the best of his judgment at Rs. 20,00,000. The assessee once again appealed. The appellate authority reduced the turnover to Rs. 13,00,000, but rejected the assessee's objection that the Assistant Sales Tax Officer had no jurisdiction to issue the notice under Section 21. The assessee then filed a revision and raised the following contentions :
(i) That the notice under Section 21 issued by the Assistant Sales Tax Officer was unauthorised.
(ii) That there was no escapement of the turnover for purposes of Section 21 merely because no return had been filed and such a case would be governed by Section 7(3) of the Act.
3. The revising authority rejected both the contentions. It, however, remanded the case for a fresh assessment in view of the fact that the assessment for the subsequent year was pending before the Sales Tax Officer in remand proceedings.
4. We shall now take up the questions seriatim.
5. With regard to question No. (1), the position appears to be like this. under Clause (b) of Section 2 of the Act, the assessment has to be made by the assessing authority appointed by the State Government. Under Rule 2 of the U.P. Sales Tax Rules, a Sales Tax Officer has been defined to mean a Sales Tax Officer of a circle appointed by the State Government to perform the duties and exercise the powers of the assessing authority in such circle and includes an Assistant Sales Tax Officer appointed by the Commissioner of Sales Tax for such circle. Nowhere in the Act or the Rules, the jurisdiction of the Assistant Sales Tax Officer is limited to Rs. 40,000. There is a notification of the Government dated 19th March, 1949, which shows that the Government authorised all the Assistant Sales Tax Officers in Uttar Pradesh to perform the duties and exercise the powers of the assessing authority within the sales tax circle to. which they may be posted. In this order passed by the Government also there is no limitation on the pecuniary jurisdiction of the Assistant Sales Tax Officer. There is however a Government Order dated 27th September, 1949, to the following effect:
The Governor has been pleased to order that the Assistant Sales Tax Officers should assess cases of turnovers up to the limit of Rs. 40,000 and all cases of assessees of turnovers exceeding the above amount should, however, be dealt with by the Sales Tax Officers themselves.
6. This letter is not an order regulating the appointment of an Assistant Sales Tax Officer or a Sales Tax Officer as an assessing authority under Section 2(b) of the Sales Tax Act. It is merely a G.O. containing a departmental or executive instruction to the Commissioner of Sales Tax indicating to him how the work should be divided between the Sales Tax Officer and the Assistant Sales Tax Officers when they have concurrent jurisdiction. This G.O. does not affect the jurisdiction conferred upon every Assistant Sales Tax Officer Under the notification dated 19th March, 1949, mentioned above.
7. We are completely supported in this view by a decision of a Division Bench of this Court in Bhikari Dass Basantilal v. The Commissioner, Sales Tax, U.P. Sales Tax Case No. 304 of 1953 decided on 4th March, 1960. Thus the notice issued under Section 21 by 1he Assistant Sales Tax Officer was perfectly valid. If the Assistant Sales Tax Officer and the Sales Tax Officer had concurrent jurisdiction, the assessment could well be made by the Sales Tax Officer even when the notice under Section 21 had been issued by the Assistant Sales Tax Officer.
8. Now, coming to question No. (2), we find that the same does not arise out of the order of the Judge (Revisions). No such question was raised before him and as such there is no finding upon it. It is true that this question has been referred in accordance with the direction of this court passed on the assessee's application under Section 11(4) of the Act. But that does not mean that we are bound to answer the question even if it does not arise out of the order of the revising authority. In Commissioner of Income-tax, West Bengal v. Smt. Anusuya Devi A.I.R. 1968 S.C. 779 , the Supreme Court while dealing with a similar question under Section 66 of the Income-tax Act, which corresponds to Section 11(4) of the U.P. Sales Tax Act, laid down in paragraph 10 :
We find it difficult to uphold the view of the Calcutta High Court that, if an order is passed by the High Court calling upon the Tribunal to state a case on a question which does not arise out of the order of the Tribunal, the High Court is bound to advise the Tribunal on that question even if the question does not arise out of the order of the Tribunal.
9. Turning now to question No. (3), the Judge (Revisions) took the view that Section 21 was not applicable where the assessee had failed to file a return. Such a case was, according to him, covered by Section 7(3) Under which a best judgment assessment could be made against an assessee, who had failed to file a return. For this view, he relied upon a decision of this court in Kishan Lal Gopi Kishan v. Commissioner of Sales Tax, U.P. S.T.R. No. 397 of 1961 decided on 30th July, 1963. The view expressed in Gopi Kishan's case S.T.R. No. 397 of 1961 decided on 30th July, 1963, is no longer good law. A Full Bench of this Court in Commissioner of Sales Tax, U. P. v. Jag Mohan Nath Aga  29 S.T.C. 663, has held that turnover escapes assessment even where the assessee fails to file a return. The Full Bench has further held that in such a case both Sections 21 and 7(3) would apply so that it would be open to the department either to proceed under Section 21 or to make an assessment under Section 7(3). In the instant case, the assessment was made after initiating proceedings under Section 21. The Judge (Revisions), however, relying upon the decision in Gopi Kishan's case1, took the view that such an assessment was invalid under Section 21, but was valid nder Section 7(3). He, therefore, tried to justify the assessment Under the latter provision. In view, however, of the fact that the assessment under Section 21 itself would be valid because of the decision of the Full Bench, the question whether such an assessment could be justified under Section 7(3) becomes of academic importance only. It is, therefore, not necessary to answer question No. (3) either.
10. We accordingly answer question No. (1) in the affirmative in favour of the department and against the assessee. We return no answer to questions Nos. (2) and (3). The assessee shall pay costs of this reference to the Commissioner of Sales Tax which we assess at Rs. 100.