The judgment of the court was delivered by

GULATI, J. - This is a reference under section 11(1) of the U.P. Sales Tax Act.

The assessee is a manufacturer and dealer in bricks. He disclosed his turnover for the assessment year 1961-62 at Rs. 1,00,535.15 and Rs. 73,938.39 for the assessment year 1963-64. He deposited tax on this turnover at the rate of 2 per cent. which was the rate of tax prescribed under the charging section 3. The Sales Tax Officer did not accept the returns of the assessee and estimated the turnover for the two years at Rs. 1,51,000 and Rs. 1,17,000 respectively. He levied tax at the rate of 6 per cent. on the turnover for the year 1961-62 and at the rate of 7 per cent. on the turnover for the year 1963-64. It may be mentioned here that brick is a commodity which is taxable under section 3-A of the U.P. Sales Tax Act and according to the notifications issued under that section the rate of tax on the turnover of bricks was 6 per cent. during the year 1962-63 (sic) and 7 per cent. during the year 1963-64. The assessee was aggrieved and he filed two appeals without depositing any further tax. A preliminary objection was taken at the time the appeals came up for hearing that the appeals were incompetent because the assessee had failed to deposit the admitted tax as required by the first proviso to section 9 of the Act. The assessee's contention that the bricks are a commodity which is not taxable under section 3-A and the tax is leviable under the charging section was overruled and the appeals were dismissed as incompetent. The assessee went up in revision and contended that he had deposited the tax which he had admitted to be due and it was not necessary for him to deposit the tax as eventually calculated by the Sales Tax Officer, because he had disputed the legality of the notifications under which the enhanced rate of tax was fixed on the turnover of bricks. His further contention was that as he had disputed the jurisdiction of the Sales Tax Officer, who made the assessment, he was under no liability to pay any tax at all before filing the appeals. These contentions have been rejected by the Judge (Revisions). The assessee has asked for a reference and the revising authority has submitted the statement of the case and has invited the opinion of this court on the following questions of law :

"(1) Whether in the circumstances of the cases has it rightly been held by the Additional Judge (Revisions) Sales Tax, Agra, that the appeals were rightly dismissed as non-entertainable for want of payment of the admitted tax at the prescribed rate of 7 per cent. ?

(2) Whether in view of the grounds taken in appeal as well as in revision that the Sales Tax Officer had no jurisdiction to make the assessments, which were subject-matter of dispute, was the Additional Judge (Revisions) Sales Tax justified in holding that even then the admitted tax ought to have been deposited at the prescribed rate of 7 per cent. ?

(3) Whether in view of the point about the jurisdiction taken by the applicant the admission of tax at 2 per cent. was not a superfluous admission on his part and has such admission been rightly read against him ?

(4) Whether in the circumstances of the case the principle of law laid down by the Honourable High Court in the case of M/s. Kanpur Vanaspati Stores v. Commissioner, Sales Tax, U.P. ([1969] 23 S.T.C. 62.), has correctly been interpreted ?"

After having heard the learned counsel we are of opinion that the questions have not been properly framed. In our opinion, only three questions arise. The first question is as to whether the admitted tax should be the amount calculated on the admitted turnover at the rate of 2 per cent. as contended for the assessee or it should be at 6 per cent. for the year 1961-62 and 7 per cent. for the year 1963-64. The second question would be as to whether the assessee had paid the admitted tax so as to fulfil the requirement of the first proviso to section 9 of the Act.