1. This is a petition under Section 22(2) of the Punjab General Sales Tax Act, 1948, requiring the Sales Tax Tribunal to refer the following questions of law for our opinion :
(a) Whether on the facts and circumstances of the case, the order of assessment dated 24th July, 1961, was not an order under Section 11(4) of the Punjab General Sales Tax Act ?
(b) Whether in the circumstances of the case, it was an assessment under Section 11(3) of the Punjab General Sales Tax Act ?
4. At the last hearing, the learned counsel for the department raised a preliminary objection that the application under Section 22(2) of the Act was barred by limitation. The contention was that the application was filed on the 8th May, 1968, and it was beyond the period of limitation prescribed in the Act. It may also be mentioned that this application was returned to the petitioner's counsel on the 9th May, 1968, by the High Court office with certain objections which are not material for the present controversy. The application was re-filed in this court on 5th January, 1971, with an application under Section 5 of the Limitation Act. This application explained the delay between the 9th May, 1968, and 5th January, 1971. No counter-affidavit has been filed by the department and in this situation we have to accept the allegations made in the affidavit filed by the junior counsel of Mr. Bhagirath Dass. The main reason given is that the learned counsel's clerk was guilty of some malpractices and it was for that reason that the application could not be re-filed. However, the learned counsel for the department maintained that the application as filed on 8th May, 1968, was still out of limitation. Time was taken by the learned counsel for the petitioner to bring to our notice a decision of this court wherein in similar circumstances, it was held that the application as originally filed in this case on the 8th May, 1968, would be within limitation. The contention of the learned counsel for the petitioner is that no copy of the order of the Financial Commissioner was supplied to him and limitation could only run from the date the copy was supplied. Only an intimation of the order was sent and on that the petitioner applied for a copy of the order and as soon as he obtained the copy of the order he filed the application in this court under Section 22(2). In similar circumstances, a similar contention as to limitation was negatived by us in Piare Lal Khushbakhat Rai v. The State of Punjab, [1971] 27 S.T.C. 398. For the reasons recorded in the aforesaid decision, we must hold that the application made on 8th May, 1968, is within time.
5. So far as the merits of the case are concerned, admittedly the question that requires determination is a question of law.
6. For the reasons recorded above, we direct the Tribunal to refer the following question of law for our opinion, along with the statement of the case :
7. Whether on the facts and circumstances of the case the order of assessment dated 24th July, 1961, was not an order under Section 11(4) of the Punjab General Sales Tax Act ?
8. We, however, make no order as to costs.