Judgment

SARKARIA, J.: - This appeal by special leave is directed against the judgment of the Allahabad High Court answering against the Department the following question referred to it under Section 11 of the U. P. Sales Tax Act. 1948:

"Whether under the circumstances of the case starting point of limitation for the Department to prefer a revision against the original assessment order would start from the date of assessment order or would start according to the discretion of the assessing officer or the Department from the time the assessing officer wishes to apprise the Department about the passing of the assessment as in this case."

2. The respondent-assessee is a dealer carrying on business at Beriyaganj Shahjahannur. On 6-7-1958. the Sales Tax Officer passed an order assessing him for the year 1957-58. Subsequently, the Sales Tax Officer felt that by oversight a mistake had crept in the order of assessment made by him. Consequently, in January 1960, he wrote a letter to P. A. to the Commissioner, Sales Tax seeking guidance as to how he should proceed in the matter to rectify the omission. The Commissioner treated that intimation received on 27-1-1960 as service on him. Thereafter, on 11-4-1950, the Commissioner filed a revision application under Section 10 of the Act before the Judge (Revisions).

3. When this revision came up for arguments before the revisional authority, the assesses urged that the revision was time-barred inasmuch as it had been filed more than 18 months after the date of the assessment order. The assessee s contention was that the starting point for limitation was the date of the assessment order. As against this, the Department maintained that the terminus a quo for limitation was 27-1-1960, on which date the Personal Assistant to the Commissioner had, received the intimation of the assessment order, and consequently, the revision having been filed within one year of that date, wag fully within time. The Judge (Revisions) accented the contention of the assessee and dismissed the revision as barred by limitation.

4. At the instance of the Commissioner, the Judge (Revisions) referred the question under Section 11 of the Act to the High Court for opinion. The reference, in the first instance, was heard by a Division Bench consisting of Jagdish Sahai and M. H. Beg JJ. Jagdish Sahai J. was of the view that the starting point of limitation in the case of a revision application filed by the Commissioner would be the date on which the assessment order was passed by the Sales-tax Officer because the law creates a presumption that the Commissioner would be deemed to have been served on that date.

5. Beg J. struck the discordant note :

"My answer to the first part of the question, as framed, is in the negative. I am of opinion that the period of limitation for the Commissioner to prefer a revision application under Section 10 (3) (i) of the Act will not start from the date of the assessment order. I would answer the second part of the question also in the negative by saying that the period of limitation would not commence to run from any date lying within the discretion or depending upon the wishes of the assessing officer. It would commence, in accordance with Section 10 (3-B) from the actual date on which the Commissioner has been duly apprised of the contents of the assessment order in a mode which may be deemed to be "service" upon him. The mere passing of an assessment order cannot, in my opinion be possibly deemed to be "service" automatically upon the Commissioner. In the case before us the Commissioner applied within the prescribed period after the communication of the contents of the assessment older to him which was sufficient "service." "

6. On account of this difference of opinion the case was referred to Verma J. who agreed with Jagdish Sahai J. and answered the question against the Department. Hence this appeal.

7. Before 1954, no limitation for filing an application for revision was provided in the Act or