R.N. Misra, J.
1. The petitioner is a firm carrying on business at Kantabanji in the district of Bolangir and has been registered as a dealer under the Orissa Sales Tax Act (hereinafter referred to as the 'Act'), with registration number B.P. 11-93. The Sales Tax Officer reassessed the dealer for the year 1969-70 under the provisions of Section 12(8) of the Act and completed the assessment under Section 12(4) of the Act for the year 1970-71. Both the order of reassessment as also the order of assessment were made on 27th May, 1972, and by these, additional tax was demanded for both the years. The assessee preferred appeals before the Assistant Commissioner of Sales Tax at Bolangir and its appeals were registered as Appeals Nos. 17 and 18 of 1972-73. Both these appeals were dimissed summarily on account of non-removal of defects which had been pointed out by the appellate authority and no further steps were taken against the said appellate decisions. The Assistant Commissioner of Sales Tax, however, issued notices under Section 23(4) of the Act for revising the orders of assessment and, while that matter was pending, by notice dated 21st March, 1975, the Commissioner of Sales Tax purported to revise the very same assessments. Before the Commissioner, the matters were posted to 21st April, 1975, and were adjourned to 29th April, 1975, and readjourned to 30th April, 1975. On that date, the assessee wanted to know the reasons for the initiation of the suo motu proceeding for revision. On 2nd May, 1975, the grounds were furnished to the petitioner's Advocate at Cuttack fixing 7th May, 1975, for hearing. The intimation sent by his counsel was received by the petitioner on 9th May, 1975, and as such the petitioner could not instruct his counsel on facts. The Commissioner passed his orders on 26th May, 1975, enhancing the assessments. These orders of the Commissioner enhancing the tax demand are assailed in these two-applications.
Two contentions have been raised in support of the applications: firstly, jurisdiction under Section 23(4) of the Act could not have been exercised inasmuch as the orders of assessment had been affirmed by the appellate authority and Rule 80 of the Orissa Sales Tax Rules (hereinafter called the 'Rules') operated as a bar ; and, secondly, the order of revision which is prejudicial to the petitioner has been passed without affording a reasonable opportunity of hearing to the assessee.
2. A counter-affidavit has been filed contending that the summary rejection of the appeals did not lead to merger of the orders of assessment in the appellate orders and, therefore, the orders of assessment were open to revision. It has also been contended that reasonable opportunity had been afforded to the petitioner and even the ground on which the revision proceeding had been initiated were communicated to the petitioner through its counsel.
3. We shall now proceed to examine the tenability of the two contentions of the assessee. Section 23(4) of the Act provides :
(a) Subject to such rules as may be made and for reasons to be recorded in writing, the Commissioner may, upon application by a dealer or on his A own motion revise any order made under this Act or the Rules made thereunder by any person other than the Tribunal or Additional Tribunal, as the case may be, appointed under Sub-section (3) of Section 3 to assist him :
Provided that the Commissioner shall not entertain any such application for revision if the dealer filing the same having a remedy by way of appeal under Sub-section (1) or Sub-section (3), did not avail of such remedy or the application is not filed within the prescribed period.
The relevant rules are rules 79 and 80 and they are to the following effect:
79. The application to the Commissioner for revision of an order passed by an Assistant Sales Tax Officer or a Sales Tax Officer or an Assistant Commissioner, as the case may be, may be filed by the dealer within thirty days from the date of receipt by him of such order:
Provided that no such application shall be entertained by the Commissioner in respect of any order against which the applicant has a right of appeal under Sub-section (1) or Sub-section (3) of Section 23 :
Provided further that the Commissioner may admit an application for revision received after the said period if it is shown to his satisfaction that the applicant had reasonable cause for not preferring the application in time.
80. The Commissioner may of his own motion, at any time within three years from the date of passing of any order by the Assistant Sales Tax Officer or by the Sales Tax Officer and within two years from the date of passing of any order other than an appellate order by the Additional Commissioner, Deputy Commissioner or the Assistant Commissioner, as the case may be, call for the record of the proceedings in which such order was passed and revise any such order.
Section 23(4)(a) of the Act authorises the revisional jurisdiction to be exercised by the Commissioner at the instance of the dealer and/or on his own motion. Rule 79 deals with revision applications by the dealer while Rule 80 is in respect of exercise of suo motu jurisdiction. There is no dispute before us that on account of the opening clause in Section 23(4)(a) of the Act, the provision in Rule 80 must operate and control the revisional jurisdiction conferred by the statute. Sub-section (4)(a) vests the power of revision in the Commissioner against orders of authorities under the Act excepting the Tribunal or the Additional Tribunal while Rule 80 excludes application of Commissioner's suo motu jurisdiction in regard to appellate orders of the Additional Commissioner, Deputy Commissioner or the Assistant Commissioner. Rule 79 contemplates a revision by an assessee against the order of an Assistant Commissioner, but Rule 80 in clear terms excludes an appellate order of the Assistant Commissioner from the purview of the revisional power. Reading the provisions of Section 23(4)(a) of the Act and the two relevant rules, we find that the rules do not seem to have been very appropriate. In the section itself, exclusion of the appellate order of the Assistant Commissioner is not contemplated and it is only in Rule 80 that the provision for exclusion appears.
The scheme of revision under the Sales Tax Act is more or less on the pattern of the corresponding provision in the Income-tax Act. Section 33-A of the Income-tax Act of 1922 and Section 264 of the Income-tax Act of 1961 contain the statutory provision of revision. A reference made to Section 264 of the later Income-tax Act clearly shows that the Commissioner is not to exercise revisional power, when an appeal against the impugned order lies to the Assistant Commissioner or the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired unless the assessee waives his right of appeal or where the order is pending on appeal before the Appellate Assistant Commissioner or before the Appellate Tribunal. Under the Income-tax Act, except orders of the Appellate Tribunal, all other orders are subject to revision by the Commissioner. In view of the provisions of Rule 80 of the Rules, we are, however, not in a position to interpret the scope of Sub-section (4)(a) of Section 23 of the Act as authorising a revision against the appellate order of the Assistant Commissioner. We, however, fell inclined to say in answer to the stand of the learned standing counsel that the two rules have not been happily worded and the same should be redrafted so that the true legislative purpose may be adequately implemented. For our present purpose we shall, however, proceed on the footing that the appellate order of an Assistant Commissioner is not open to the suo motu revisional jurisdiction of the Commissioner of Sales Tax.
4. Next for consideration comes the question as to whether the summary dismissal of the two appeals of the petitioner by the Assistant Commissioner could be taken as appellate orders within the meaning of Rule 80. There is no dispute that an appeal against each of the two orders had been filed before the Assistant Commissioner of Sales Tax and each of them was dismissed by the appellate authority for non-removal of defects. The order of dismissal admittedly was under Rule 49 of the Rules. Mr. Mohanty for the petitioner contends that even when an appeal was summarily dismissed for non-removal of defects, the order of assessment had merged in the appellate order of the Assistant Commissioner and, therefore, the restriction under Rule 80 became operative and excluded the Commissioner's revisional jurisdiction. Learned standing counsel, on the other hand, has contended that it is not every order of the appellate authority that leads to merger of the original order in the appellate order and, therefore, when the appeals had been dismissed summarily there was no decision on merit at all of the appellate authority and the principle of merger, therefore, is not attracted. We shall now proceed to examine this interesting question.
In the case of Gojer Brothers (P.) Ltd. v. Shri Raton Lal Singh A.I.R. 1974 S.C. 1380, the Supreme Court pointed out :
The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject-matter. Therefore, the judgment of an inferior court, if subjected to an examination by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court. In other words, the judgment of the inferior court loses its identity by its merger with the judgment of the superior court.
Stated in this form the principle may appear to be unexceptionable but the problem has many facets. What, if the higher court dismisses the proceeding before it summarily without a speaking order Does the judgment of the lower court still merge in the unspeaking order of the higher court What, if the powers of the higher court are invoked in the exercise of its revisional and not appellate jurisdiction Does a judgment or an order passed in the exercise of a severely restricted jurisdiction like that under Section 115 of the Code of Civil Procedure wipe out of existence a decree or order passed in the exercise of a wider jurisdiction as may be exercised by a court possessed of a suit Does it make any difference to the application of the doctrine of merger that the higher court has not modified or reversed the judgment of the lower court but has merely affirmed it These nuances had once raised issues on which conflicting views were expressed by the courts. Over the years, the area of conflict has considerably narrowed down and most of the problems touched by us have been resolved by this court.
The court thereafter referred to its own decisions in Commissioner of Income-tax, Bombay v. Amritlal Bhogilal and Co.  34 I.T.R. 130 (S.C.), Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta A.I.R. 1963 S.C. 1124, Madan Gopal Rungta v. Secretary to the Government of Orissa A.I.R. 1962 S.C. 1513, U.J.S. Chopra v. State of Bombay A.I.R. 1955 S.C. 633, Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat A.I.R. 1970 S.C. 1 and Somnath Sahu v. State of Orissa (1969) 3 S.C.C. 384, as instances illustrative of the different facets. Referring to the case of State of Madras v. Madurai Mills Co. Ltd. A.I.R. 1967 S.C. 681, the court stated :.It was held in that case that the order of assessment dated November 28, 1952, had not merged in the revisional order dated August 21, 1954, passed by the Deputy Commissioner of Commercial Taxes 'because the question of exemption on the value of yarn purchased from outside the State of Madras was not the subject-matter of revision'. The attention of the court was drawn to Amritlal Bhogilal's case  34 I.T.R. 130 (S.C.), to which we have already referred, but Ramaswami, J., who spoke for the court, said :
But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.These observations cannot justify the view that in the instant case there can be no merger of the decree passed by the trial court in the decree of the High Court. The court, in fact, relied on Amritlal Bhogilals case  34 I.T.R. 130 (S.C.), while pointing out that if the subject-matter of the two proceedings is not identical, there can be no merger. Just as in Amritlal Bhogilal's case  34 I.T.R. 130 (S.C.), the question of registration of the assessee-firm was not before the appellate authority and, therefore, there could be no merger of the order of the Income-tax Officer in the appellate order, so in the case of Madurai Mills  1 S.C.R. 732 there could be no merger of the assessment order in the revisional order as the question regarding exclusion of the value of yarn purchased from outside the State was not the subject-matter of revision before the Deputy Commissioner of Commercial Taxes.
In the instant case, the subject-matter of the suit and the subject-matter of the appeal were identical. The entire decree of the trial court was taken in appeal to the first appellate court and then to the High Court. The appellate order also shows that the appeal after being heard on merits was dismissed with the modification that the respondent should vacate the premises by the end of January, 1970....
The court, therefore, found as a fact in that case that there was merger.
In the case of Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta A.I.R. 1963 S.C. 1124, Wanchoo, J., as the learned Judge then was, spoke for the court thus :
The question, therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of the three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority.... It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases, after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it....
It is this principle, viz.. that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-whether of reversal or modification or mere confirmation....
It is on these principles that Mr. Mohanty for the petitioner contended that even a summary dismissal of the appeal had the effect of merger of the original order of assessment in the appellate order of dismissal leading to confirmation. Learned standing counsel, on the other hand, had relied upon the decisions in the cases of Amritlal Bhogilal  34 I.T.R. 130 (S.C.) and Madurai Mills A.I.R. 1967 S.C. 681. These cases have been sufficiently dealt with by the later case of Gojer Brothers A.I.R. i974 S.C. 1380 (just referred to above) and we are of the view that the principles indicated in the two cases were more or less with reference to the facts arising therein and cannot be said to lay down any rule of general application.
A Division Bench of the Allahabad High Court in the case of J.K. Synthetics Ltd. v. Additional Commissioner of Income-tax, U.P.  105 I.T.R. 344, examined the same question and took into consideration a Bench decision of the Gujarat High Court in the case of Karsandas Bhagwandas Patel v. Income-tax Officer  98 I.T.R. 255, and some of the cases of the Supreme Court, just referred to above, and came to hold in support of the principle of merger. It relied upon the ratio in the case of Sheodan Singh v. Daryao Kunwar A.I.R. 1966 S.C. 1332. Therein, the Supreme Court pointed out :.We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
When an appeal is barred by limitation and, ultimately, the appeal is dismissed because delay is not condoned, the merit of the matter is not examined at all. Similarly, when an appeal is dismissed for default, because printing is not made as directed, the merit of the matter does not come for consideration. No distinction can be drawn between dismissal for default in printing and dismissal for default on account of failure to remove defects pointed out. Even when an appeal gets dismissed on such grounds and the merit of the dispute is not examined, the court has normally pointed out that it would amount to merger. We would, accordingly, following the ratio of this decision, hold that the dismissal of the appeals in the instant case had the effect of merging the original assessments in the appellate orders of the Assistant Commissioner and on account of the restriction imposed in Rule 80 of the Rules, the Commissioner had no jurisdiction to revise the orders of assessment.
5. Our finding on the other question was indeed sufficient to dispose of the matter. Since the contention had been canvassed with equal emphasis we proceeded briefly to deal with it. Admittedly, in the notice issued in the suo motu revision proceeding for the two years, no grounds had been indicated and rightly the assessee, therefore, required to be informed of the grounds upon which the proceedings had been initiated. As already indicated, the grounds were provided only on 2nd May, 1975, and the hearing had been fixed to 7th May, 1975. The assessee comes from Kantabanji and the interval of four days between the date of communication of the grounds and the date of hearing, in our opinion, was not indeed reasonable. The anxiety on the part of the Commissioner to close the proceeding was possibly to avoid the limitation of three years provided in Rule 80 and the limitation was to set in by 26th May, 1975, in the instant case. As a fact, the impugned orders were passed on the last day of limitation. The fact that proceedings had been commenced belatedly is no justifying ground to take away the right of being given a fair hearing to the assessee.
6. On the analysis presented above, we are of the view that the two impugned orders must be quashed as being without jurisdiction. Both the writ applications accordingly succeed. We, however, make no direction for costs, as the question involved in the matter was contentious.
7. I agree.