( 1 ) AN ex-parte order of assessment for the assessment year 1986-87 was framed by Sales Tax Officer Ward No. 1i, New Delhi under the provisions of Delhi Sales Tax Act, 1975. The assessee preferred an appeal under Section 43 of the Act. By order dated 17. 2. 92, the Additional Commissioner of Sales Tax required the petitioner to deposit Rs. 2 lacs and furnish security in the sum of Rs. 2 lacs under sub-section (5) of Section3. As against the order dated 17. 2. 92, the petitioner preferred an appeal to the Tribunal which by order dated 9. 4. 92 modified the order under Section 43 (5) of the ACST requiring the petitioner to deposit Rs. 1 lac in cash and furnish security in the sum of Rs. 2 lacs. The petitioner could not comply with the order. On 3. 6. 92 the ACST dismissed the appeal in limine for non- compliance with the order under Section 43 (5 ). The petitioner preferred an appeal to the Tribunal against the order dated 3. 6. 92 which was dismissed.

( 2 ). Having thus lost the remedy of appeal against the ex-parte order of assessment dated 15. 3. 91, the petitioner preferred a revision petition under Section 47 of the Act to the ACST, laying challenge to the ex- parte order of assessment passed by the Sales Tax Officer. By order dated 19. 7. 96 (Annexure P-7) the revision filed by the petitioner has been dismissed as not maintainable in view of the petitioner having already availed the remedy of appeal against the order of assessment. It is this order dated 19. 7. 96 which is impugned herein.

( 3 ). The sole and singular contention advanced on behalf of the petitioner before this Court is that the ACST has committed an error of law in dismissing his revision petition as not maintainable in as much as the appeal preferred by him having not been decided on merits but having been dismissed as not entertainable the applicability of the doctrine of merger was not attracted and there was otherwise no bar in law to the entertainability of the revision by the ACST.

( 4 ). For the sake of ready reference, we may extract and reproduce the relevant provisions of law hereunder :-

43. Appeals.-- (1) Any person aggrieved by any order, not being an order mentioned in Section 44 under this Act or the rules made thereunder, may appeal to the prescribed authority : xxxxxxxxx xxxxxxxxx xxxxxxxxxx (5) No appeal against an order of assessment with or without penalty or against an order imposing the penalty shall be entertained by an appellate authority unless such appeal is accompanied by a satisfactory proof of the payment of tax with or without penalty or, as the case may be, of the payment of penalty in respect of which the appeal has been preferred: Provided that the appellate may, if it thinks fit, for reasons to be recorded in writing entertain an appeal against such order-- (a)without payment of the tax and penalty, if any, or as the case may be, of the penalty, on the appellant furnishing in the prescribed manner security for such amount as it may direct, or (b)On proof of payment of such smaller sum, with or without security for such amount of tax or penalty which remains unpaid, as it may direct : Provided further that no appeal shall be entertained by the appellate authority unless it is satisfied that such amount of tax as the appellant may admit to be due from him has been paid. xxxxxxxxxxxxxx

47. Revision of other orders.-- (1) In the case of any order, other than an order referred to in Section 44 or to which Section 46 applies, passed by a person appointed under Sub-Section (2) of Section 9 to assist him, the Commissioner may, either on his own motion or on an application filed in accordance with such rules as may be prescribed, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass orders thereon, not being an order prejudicial to the dealer, as he thinks fit : Provi