Satish Chandra, J.
1. The Additional Judge (Revisions), Sales Tax, Agra, has referred the following question of law for the opinion of this court:
Whether, under the circumstances of the case, the Additional Judge (Revisions), Sales Tax, was legally justified in condoning the delay in filing the appeal?
2. It appears that for the assessment year 1962-63 an ex parte assessment order was passed by the Sales Tax Officer on 31st March, 1964. It was served on the assessee on 22nd May, 1964. The assessee filed an application under Section 30 of the Sales Tax Act for setting aside the ex parte order. The application was ultimately dismissed on 25th March, 1967. The assessee then went up in appeal which was also dismissed. The assessee then went up in revision which was dismissed on 26th July, 1968.
3. On 19th August, 1968, the assessee filed an appeal against the original ex parte assessment order. The memorandum of appeal was accompanied by an application under Section 5 of the Indian Limitation Act. The appellate authority rejected the application under Section 5 of the Limitation Act and dismissed the appeal as barred by time. On revision, the revising authority found that from the date of filing the application under Section 30 up to the date of the revisional order, the assessee had been prosecuting his application under Section 30 with due diligence in the bona fide belief that he had a good case for the reopening of the assessment proceedings. It was also observed that against the assessment order the assessee had two alternative remedies, one by an application under Section 30 and the other by way of an appeal under Section 9 of the Act on merits, but the matters in the two proceedings were different. In the first proceedings, only the reasons for non-appearance were to be looked into, while in the second proceedings, it alone had to be seen whether there was sufficient material on record to corroborate the estimate made by the assessing authority. But, still if the first application succeeded, there was no necessity to initiate the second proceedings by way of appeal on merits at all. So if a person bona fide and with due diligence prosecutes the first proceedings and on being unsuccessful therein, files an appeal on merits, it can be said that he had sufficient cause for not filing an appeal during the period in which he was prosecuting his application under Section 30. So there was good cause for condonation of delay.
4. Having heard the learned standing counsel we are not satisfied that the revising authority committed any error of law in taking the view that the assessee was bona fide and with due diligence prosecuting the first proceedings under Section 30 and on being unsuccessful therein filed an appeal on merits, which is a finding of fact. On the basis of the said finding the delay could reasonably and validly be condoned.
5. Our answer to the question referred to us is in the affirmative, in favour of the assessee and against the department. The assessee is entitled to its costs which we assess at Rs. 100.