Surinder Singh, J.
1. This reference which was initiated by the petitioner, Messrs. Surinder Cycle Store, Ajnala, under Section 22(1) of the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the Act), has been made to this Court, by the Sales Tax Tribunal, Punjab, for eliciting opinion in regard to the following questions :
(1) Whether an application for setting aside an ex parte order in appeal lies under the proviso to rule 59(2) of the Punjab General Sales Tax Rules, 1949, if the assessee was not duly served, even though the appeal had been disposed of on merits after taking the relevant facts on the record into consideration ?
(2) Whether the period spent by the assessee in moving an application for rectification and review under Section 21A of the Punjab General Sales Tax Act, 1948, till its decision is to be excluded for the purposes of limitation for filing an application for reference under Section 22 of the Act ?
2. The facts as noticed from the statement of the case are that the petitioner-assessee was assessed to sales tax for the assessment year 1963-64 to the tune of Rs. 3,275.91 and a penalty of Rs. 100 was also imposed upon him under Section 11(6) of the Act by the Assessing Authority, Amritsar, as per order dated 7th March, 1968. The appeal filed by the assessee before the Deputy Excise and Taxation Commissioner was partly accepted and the levy of penalty was set aside. The assessment of sales tax was, however, upheld. Therefore, the petitioner filed another appeal before the Sales Tax Appellate Tribunal which was fixed for hearing on 23rd August, 1971. On that date, the assessee did not appear and the Tribunal decided the appeal in his absence, though after considering the merits of the case. The assessee then filed an application under the proviso to Rule 59 of the Punjab General Sales Tax Rules, 1949, for setting aside the ex parte order dated 23rd August, 1971, and for restoration of the appeal. The petitioner pleaded that he had not been served for the hearing of the appeal and could not, thus, appear on the date fixed. This application was, however, rejected by the Tribunal holding that the appeal had been properly disposed of on merits, and as such, the application for restoration did not lie. In these circumstances, the petitioner moved for a reference to this Court, as noticed above.
3. The questions referred to for the opinion of this Court are such that they would not detain us long. The substance of question No. (1) is, as to whether an application for setting aside an ex parte order in appeal lies under the proviso to Rule 59(2) of the Punjab General Sales Tax Rules, if the assessee was not duly served but the appeal had been disposed of on merits after taking the relevant facts into consideration. The answer to the question is available in the very proviso to rule 59(2) which clearly recites that such an application is competent. The significant words used in the said proviso are 'or decided ex parte'. It is obvious that it is immaterial as to whether the decision is made either summarily or after taking into consideration the facts of the case. We would, therefore, answer question No. (1) in the affirmative, i. e., in favour of the assessee and against the revenue.
4. As regards question No. (2), we find that the matter to which this question relates was never considered by the Tribunal at all, nor was any finding recorded in respect of the same. The reference of such a question for opinion of this Court is, therefore, not competent. Accordingly, we leave the question unanswered.
5. In the circumstances of the case, there shall be no order as to costs of this reference.