Judgment

HEGDE, J.:- These are appeals by special leave. They are filed by the same assessee. They arise from the decision of a Division Bench of the Allahabad High Court. The judgment under appeal not only deals with references made under the U. P. Sales Tax Act 1948 (hereinafter referred to as the Act) but also the two Writ Petitions filed by the assessee.

2. The assessee who is a registered dealer under the Act is having his business at Kanpur. It carries on business in hydrogenated oil and washing soap. It also imports and distributes vanaspati as an agent of Malwa Vanaspati and Chemical Company Ltd., Indore.

3. In these appeals we are concerned with the assessee s assessment of sales tax for the assessment year 1957-58. Its return for that year disclosed a gross as well as net turnover of Rs. 1,66,387.03p. Along with its return the assessee paid Rs. 1, 060.30P towards the tax due. Before the assessing authority the assessee admitted that its tax liability was Rs. 10,339.19P. It is admitted as well as proved that the assessee had collected from its purchasers the said amount of Rupees 10,339.19P. The Sales Tax Officer after making certain enquiries came to the conclusion that the total turnover of the assessee during the assessment year in question was Rs. 58,06,132.30P. The assessee was given opportunity to show that the estimate made by the Sales Tax Officer was not correct. From the records of the case we find that as many as 30 adjournments were given to the assessee to establish its case but the assessee did not take advantage of those opportunities. The case was finally posted for hearing on 24th March, 1962. That day the assessee was absent; but it made an application for adjournment of the case by 15 days. That adjournment was not granted and it could not have been granted because the assessment would have been barred by the end of the financial year 1961-62. Hence the assessing authority, on the basis of its best judgment determined the turnover of the assessee at Rs. 58,06,l32.30P, and determined its tax liability at Rs. 3,62,691.62P, under S. 3-A of the Act.

4. Against the order of assessment the assessee filed an appeal within 30 days from the date of the order of assessment. At the time of filing the appeal the assessee deposited only a sum of Rs. 1,600/-. It appears that the office of the Appellate Judge raised some objections as to the maintainability of the appeal. After receiving some explanation from the assessee the appeal was entertained and notice issued to the assessing authority. When the Sales Tax Officer put in his appearance in the appeal he objected to the maintainability of the appeal on the ground that the proviso to Section 9 of the Act had not been complied with. That objection was accepted and appeal was dismissed as not maintainable. Thereafter at the instance of the assessee certain questions were referred to the High Court for ascertaining its opinion. During the pendency of that reference the assessee filed a Writ Petition under Article 226 of the Constitution challenging the validity of the Notification issued under Section 3A. Thereafter another application was made under Art. 227 of the Constitution challenging the recovery proceedings. Both the Writ Petitions were dismissed. In the reference made by the Appellate Judge the High Court came to the conclusion that the appeal was properly dismissed.

5. Mr. Gupte, the learned counsel for the assessee appellant advanced the following contentions before us:

(1) That the appeal was illegally dismissed;

(2) That the assessee-appellant being an importer cannot be considered as one of the successive dealers in the series of sales as contemplated by Section 3A; and

(3) That the Notification issued under Section 3A was ultra vires the power granted to the government.

6. In order to appreciate the contentions advanced, it is necessary to refer to certain provisions of the Act. Section 3 (1) of the Act provides:

"Subject to the provisions of this Act, every