JUDGMENT

S. Manchanda, J. - This is a case stated under Section 11(1) of the U.P. Sales Tax Act (hereinafter referred to as the Act). The questions referred are:

"1. Whether under circumstances of the case, as stated above, it can be held that a notice under Section 21 was issued when there is neither any information of notice being issued on the order-sheet nor there is any copy of the notice under Section 21 on the record?

2. Whether in view of the provisions of the Rule 77 the service by affixation was a valid and proper service under the circumstances of the case as stated above?

3. Whether in the case of a dissolved and discontinued firm the notice should have been issued to the partner and assessment and tax levied on the partners individually or only notice in the name of the firm and assessment and tax levied on the firm was sufficient?"

2. The material facts are these: The assessee carried on the business in mill made cloth, imported and purchased locally. The relevant assessment year is 1954-55. A notice under Section 21 of the Act was said to have been issued by the Sales Tax Officer on the 16th of March, 1959, to the assessee firm which had, however, been dissolved three years prior thereto. The notice is said to have required the assessee's appearance before the Sales Tax Officer on the 19th of March, 1959. According to the report of the process server the dealer had refused to accept the notice and the service was, therefore, effected by affixation on the 18th of March, 1959, at the last known place of business. As no-one appeared, an ex parte assessment was made by the Sales Tax Officer on the 20th of March, 1959. Persuant thereto a demand was raised and when this was served on one of the erstwhile partners of the assessee firm, he filed an appeal and prayed for the condonation of delay on the ground that no notice under Section 21 of the Act had been served. The assessment under Section 21 of the Ac was challenged on the ground that no notice under Section 21 was served and even if it was served it was not a proper and valid service within the meaning of rule 77 of the Sales Tax Rules. The Judge (Appeals) rejected this contention notwithstanding his finding that the notice under Section 21 of the Act was not on the record and there was no mention of it in the order sheet- He brushed aside these defects by observing: "This only shows that the order sheet was not completely maintained, but so far as the service of notice is concerned, it cannot be denied in view of the process server's register." In other words, he relied entirely on the process server's register without making any attempt to make it a part of the record of these proceedings. He, therefore, held that there had been proper and valid service by affixation, but, on merits, as the assessment of tax was large, he remanded the case to the Sales Tax Officer for fresh assessment after giving the assessee an adequate opportunity to produce the account books and other documentary evidence in support of its case. Aggrieved, the assessee went up in revision. The judge (Revisions) in view of the unsatisfactory state of record, was not able to give wholly consistent findings of fact. He correctly appreciated and observed that Section 21 of the Act was the very basis of the assessment under Section 21 and, therefore, it was necessary to establish that the condition precedent for taking action under Section 21 which was the issue of a valid notice, was complied with. He, however, fell into the error of thinking that the issue of a notice was different from the service of notice. He also fell into the error of relying upon the register of the process server which had not been made a part of the record was proving that some notice was issued. In the absence of the notice under Section 21 on the record he also looked at the entries in the order sheet. As regards the latter he observed: "Strangely enough, the order sheet is silent on the point. Though the case was fixed