1. This is a petition under Section 22(2) of the Punjab General Sales Tax Act, 1948, requiring the Sales Tax Tribunal to refer the following questions of law for our opinion :
(a) Whether on the facts and circumstances of the case, the order of assessment dated 24th July, 1961, was not an order under Section 11(4) of the Punjab General Sales Tax Act ?
(b) Whether in the circumstances of the case, it was an assessment under Section 11(3) of the Punjab General Sales Tax Act ?
(c) Whether by disallowing the deductions claimed ex parte on a failure of the assessee to appear and produce evidence in support of the version, it could be said that it was an assessment under Section 11(3) of the Punjab General Sales Tax Act ?
(d) Whether in the circumstances of the case, the assessment was not a best judgment assessment ?
(e) Whether in the circumstances of the case, the order of the Joint Excise and Taxation Commissioner, dated 23rd March, 1965, could be set aside ?
2. At the hearing it is conceded that only the first question of law arises. So, in fact, the application now will be whether the said question of law arises out of the order of the Tribunal, and the Tribunal was in error in not referring the same to this court in an application made to it under Section 22(1) of the Act.
3. The petitioner is a firm. It is a registered dealer under the Punjab General Sales Tax Act, 1948 (hereinafter to be referred to as the Act). The petitioner deals in sugar, vegetable ghee, gur and other commodities. The returns are filed quarterly. For the year 1956-57, a notice in form S.T. XIV was issued calling upon the petitioner for appearing on 4th September, 1958. The assessment was made by the assessing authority on 24th July, 1961. It appears that no one appeared on behalf of the petitioner on the 15th July, 1961, and, therefore, an ex parte assessment was made on 24th July, 1961. In the .ex parte assessment, all the deductions claimed by the petitioner were disallowed and a tax liability for Rs. 39,960.56 was created. An appeal against this order by the petitioner failed. On revision -to the Joint Excise and Taxation Commissioner against the order of the Deputy Excise and Taxation Commissioner in appeal, it was held that there was no evidence on the record by which it would be said that the best judgment proceedings has been initiated within the period of three years and the assessment being a best judgment assessment, the order of the assessing authority could not be sustained. The Financial Commissioner by his order dated 16th March, 1966, issued a notice under Section 22(3) of the Act calling upon the petitioner to show cause why the order of the Joint Excise and Taxation Commissioner be not set aside. By his order dated 21st April, 1966, the Financial Commissioner set aside the order dated 23rd March, 1965, of the Joint Excise and Taxation Commissioner and restored that of the assessing authority. This order was communicated to the petitioner's counsel on 3rd May, 1966. It is noteworthy that the Financial Commissioner took the view that there was no 'best judgment assessment'. It was found that there was no default on the part of the petitioner under Section 11(3) of the Act. The petitioner's case throughout was that Section 11(3) does not apply and the case was really covered by Section 11(4). On this basis, an application was made to the Sales Tax Tribunal which had replaced the Financial Commissioner under Section 22(1) of the Act. This application was rejected by the Tribunal with the observation that the case clearly fell within the provisions of Section 11(3) of the Act. The petitioner's contention that the case fell within Section 11 (4) was negatived. The application for referring the questions of law was refused on the ground that 'the point of law was quite clear and there was no room for any argument'. The petitioner being dissatisfied, moved this court under Section 22(2) of the Act, as already stated.
4. At the last hearing, the learned counsel for the department raised a preliminary objection that the application under Section 22(2) of the Act was barred by limitation. The contention was that the application was filed on the 8th May, 1968, and it was beyond the period of limitation prescribed in the Act. It may also be mentioned that this application was returned to the petitioner's counsel on the 9th May, 1968, by the High Court office with certain objections which are not material for the present controversy. The application was re-filed in this court on 5th January, 1971, with an application under Section 5 of the Limitation Act. This application explained the delay between the 9th May, 1968, and 5th January, 1971. No counter-affidavit has been filed by the department and in this situation we have to accept the allegations made in the affidavit filed by the junior counsel of Mr. Bhagirath Dass. The main reason given is that the learned counsel's clerk was guilty of some malpractices and it was for that reason that the application could not be re-filed. However, the learned counsel for the department maintained that the application as filed on 8th May, 1968, was still out of limitation. Time was taken by the learned counsel for the petitioner to bring to our notice a decision of this court wherein in similar circumstances, it was held that the application as originally filed in this case on the 8th May, 1968, would be within limitation. The contention of the learned counsel for the petitioner is that no copy of the order of the Financial Commissioner was supplied to him and limitation could only run from the date the copy was supplied. Only an intimation of the order was sent and on that the petitioner applied for a copy of the order and as soon as he obtained the copy of the order he filed the application in this court under Section 22(2). In similar circumstances, a similar contention as to limitation was negatived by us in Piare Lal Khushbakhat Rai v. The State of Punjab,  27 S.T.C. 398. For the reasons recorded in the aforesaid decision, we must hold that the application made on 8th May, 1968, is within time.
5. So far as the merits of the case are concerned, admittedly the question that requires determination is a question of law.
6. For the reasons recorded above, we direct the Tribunal to refer the following question of law for our opinion, along with the statement of the case :
7. Whether on the facts and circumstances of the case the order of assessment dated 24th July, 1961, was not an order under Section 11(4) of the Punjab General Sales Tax Act ?
8. We, however, make no order as to costs.