JUDGMENT
Om Prakash, J.
1. These are three revisions for the assessment years 1976-77, 1977-78 and 1978-79 against the Tribunal’s combined order dated 28th June, 1986.
2. The assessee, a registered dealer, carrying on business in certified seeds, claimed exemption in respect of the turnover of certified seeds. The exemption was allowed by the assessing officer for these years. Thereafter, the assessing officer initiated proceedings under Section 21 of the U.P. Sales Tax Act, 1948, that the exemption on the turnover of seeds was wrongly allowed. He, therefore, assessed the turnover of the seeds, said to be certified seeds by the assessee, under Section 21.
3. The assessee appealed to the Assistant Commissioner (Judicial) and raised two contentions:
(i) that initiation of proceedings under Section 21 by the assessing officer was bad in law;
(ii) that the assessee was engaged in the sale of certified seeds and, therefore, turnover of that was exempted.
4. Since the Assistant Commissioner (Judicial) accepted the second contention of the assessee, he did not touch upon the contention No. (i) and no finding was recorded thereon.
5. The Revenue appealed to the Tribunal. The latter did not concur with the Assistant Commissioner (Judicial) that the assessee was a dealer in certified seeds. The Tribunal was, therefore, of the view that the exemption was wrongly allowed by the Assistant Commissioner (Judicial).
6. The common ground in these three revisions of the assessee is that the Tribunal failed to consider the preliminary objection that the assessing officer had no jurisdiction to initiate proceedings under Section 21 of the Act. The argument of the Revenue is that no such question has been formulated in any revision, nor was it canvassed by the assessee before the Tribunal. I do not see much force in these submissions. Ground No. 3 of the assessee is clear that the Tribunal failed to appreciate the provisions of Section 21, which are not applicable on a mere change of opinion. This ground implies that the assessee did challenge the validity of Section 21 proceedings. As the Revenue filed appeals, the assessee cannot demonstrate it by the grounds of appeal. There is nothing on record to show that this argument was not raised before the Tribunal by the assessee. When the assessee raised two contentions before the Assistant Commissioner (Judicial) and he accepted one of the contentions and decided the appeal in favour of the assessee, it was open to the assessee to raise the contention, which was not decided by the Assistant Commissioner (Judicial), before the Tribunal.
7. For the reasons, I have no option but to remit the case back to the Tribunal for giving a decision on the preliminary objection of the assessee whether or not the proceedings under Section 21 were rightly initiated by the assessing officer.
8. In the result, all these three revisions are allowed. The Tribunal’s combined order dated 28th June, 1986 is set aside and the cases are sent back to the Tribunal with a direction that it will record a clear finding, after giving an opportunity of being heard to both the parties on the question whether or not the proceedings under Section 21 of the U.P. Sales Tax Act, 1948, were legally initiated by the assessing officer.