RAM LABHAYA J: This is a petn under S. 32, Cl. (5), Assam Sales Tax Act, 1947. The petnr has prayed that the Comr be directed to refer to this Ct three questions of law which are said to arise from the assessment of the sales tax on the petnr for the period ending on 31-3-1948. (2) The petnr was assessed to a sum of Bs. 3,555/107-, as sale-tax, by the Supdt of Taxes on 18-2-1949. He held that the sale proceeds of tobacco leaf (Hucca leaf) were taxable. An appeal was preferred against this order. The learned Asst Comr dismissed it summarily with­out fixing any date for its hearing & without giving the petnr any opportunity of being heard. In a brief order he stated that tobacco leaf was clearly taxable & that the appeal was long barred. (3) The assessee then submitted a petn to the learned Comr of Taxes under S. 32 (2) for a reference of three questions of law alleged to have been arisen from the order of the learned Asst Comr. The following were the questions of which reference to this Ct was sought: "1. Whether the sale of Tobacco by the dealer which is imported by him as Tobacco for Hucca 'vide' the permit issued by the Central Excise Dept is taxable under the Assam Sales-tax Act, 1947 in view of item 17 of the Sch III under S. 7 of the said Act. 2. Whether the Asst Comr of Taxes could validly reject the appeal, after going into the merits of the case, without fixing a date & place for hearing of the same under S. 30 (3) & R. 33 framed under the said Act. 3. Whether in view of the fact that the dealers acted with no 'mala fide' intention to evade the payment of legitimate tax, the dealer is liable to pay tax on the sales of tobacco made perior to the date of the assessment by the Supdt, in spite of the proviso to S. 51 of the said Act." (4) The learned Comr of Taxes agreed with the learned Asst Comr in the view that the appeal to the Asst Comr was time barred. He stated in his order declining to make a reference that the assessment was made on 18-2-1949 & the order had been communicated to the assessee on 21-2-1949. He stated in his order declining to make a reference that the assessment was made on 18-2-1949 & the order had been communicated to the assessee on 21-2-1949. The appeal was preferred on 31-5-1949, long after the expiry of the period allowed for appeals. (5) The learned Comr refused to treat the order of the Asst Comr as having been passed under S. 30 (4) of the Act notwithstanding the fact that the Asst Comr had held that the tobacco leaf was taxable. His view was that as the appeal was time barred, it could not have been heard on the merits under S. 30 (4) of the Act & the observations on the merits in a time barred appeal cannot afford any basis lor a reference. (6) This petn is under S. 32, Cl. (5) of the Act. The questions on which a requisition to the Comr is sought are as follows: "1. Whether tobacco for Hucca (leaf) is not taxable under the Assam Sales-tax Act?" 2. Whether the procedure followed by tbs learned Asst Comr of Taxes is not legal & proper & whether he was bound to fix a date for hearing? & 3. Whether the petnrs are protected under the proviso to S. 51, Assam Sales tax Act? (7) The petnr may ask for a requisition for reference, if he can satisfy the Ct that his appln for reference was rejected on the ground that no questions of law arose in the case. Under Cl. (4) of S. 32, an appln for reference may be rejected on the ground that it is time barred; it may be rejected as incompetent or it may be rejected on the ground that no question of law arises. (8) It seems to me that the petn for refer­ence in the present case was dismissed by the learned Comr as incompetent. The Uomr never applied his mind to the question whether the three questions of which reference to this Ct was desired arose out of the assessment or whether they were questions of law or not. He rejected the appln on ihe ground that the appeal to the Asst Comr was time barred. He could, therefore, give no decision on the merits & his remarks, touching the merits would not bring his order under S. 30, Cl. (4). An appeal, he held, can be heard under S. 30, Cl. He rejected the appln on ihe ground that the appeal to the Asst Comr was time barred. He could, therefore, give no decision on the merits & his remarks, touching the merits would not bring his order under S. 30, Cl. (4). An appeal, he held, can be heard under S. 30, Cl. (4) if it has Seen put in within the period of limitation allowed by law or if put in after time the period has been ex­tended for good cause shown. The Asst Comr found the appeal time barred. He had to dismiss it summarily on that ground without going into the merits of the assessment. In these circum­stances, notwithstanding his observations on the merits he treated his order as a summary one dismissing the appeal as time barred. In his view the three questions of law of which reference was desired could not be said to arise from a summary order dismissing the appeal as time barred. The only reasonable construction of this order is that the appln for reference was rejected as Incompetent on the ground that there was at least in law no disposal of the appeal on the merits. (9) When an appln for reference is dismissed as incompetent, the case is not covered by S. 32, Cl. (5) & this Ct has no juris­diction to make a requisition for reference. Under Cl. (5) a reference may be demanded if the Comr holds that no question of '.aw arises in the case. This is clear from the language of Cl. (5). If the appln for reference is dismissed as time barred, the assesse has got his remedy under Cl. (6) of S. 32. There is no remedy pro-J vided for a person whose petn for reference is1 dismissed as incompetent. (10) It is now contended that the finding of the learned Asst Comr that the appeal to him was barred by time is wrong. It is pointed out that the notice of demand under B. 41 was issued on the 19th April & it was served on the petnrs on the 21st April & not on 21-2-1949 as observed by the learned Comr in his order dated 3-11-1949. It is pointed out that the notice of demand under B. 41 was issued on the 19th April & it was served on the petnrs on the 21st April & not on 21-2-1949 as observed by the learned Comr in his order dated 3-11-1949. On these facts it is urged that the appeal was within time; that the summary dis­posal of the appeal in the absence of the petnr was not in accordance with the provisions of the Act & therefore the procedure followed by the Asst Comr was not in conformity with the requirements of law. The appeal should have been heard & disposed of after notice to the petnr. (11) It is further contended that the view of the learned Comr that the appeal was rightly dismissed as time barred is wrong & the case is, therefore, covered by S. 32 (5). (12) It is conceded that if the appeal was rightly dismissed as time barred, the petnr will have no right to ask for a reference as in that case there would be no disposal of the appeal on the merits under S. 30 (4) & the questions raised could not have been referred to this Ct. under S. 32 (5). (13) The view of the learned Comr at no reference of any question of law arising from assessment is possible where the appeal is rightly dismissed as time barred, is, therefore, not open to question. The learned counsel has not con­troverted it. But the contention that the view of the learned Comr that the appeal was barred by limitation is wrong, still remains. It is pointed out that the period of limitation for appeal could start running only from the date when the notice of demand was served on the petnr under S. 33 of the Act. This contention, I am afraid, cannot be considered at this stage. The petn made to the Comr did not challenge the decision of the Asst Comr on the question of limitation. All that was urged in the appeal was that the Asst Comr before giving a decision on the merits should have given a hearing to the petnr & should not have disposed of the appeal summarily. The decision in appeal was taken as a decision on the merits & the objection raised was that no decision on the merits could have been given without notice to the petnr. The decision in appeal was taken as a decision on the merits & the objection raised was that no decision on the merits could have been given without notice to the petnr. This was the only point raised in the appln for reference made to the Comr apart from the question arising from the dis­puted liability of the assessee to taxation under the Act, & this afforded the basis for question 2 included in the appln for reference by which the procedure followed by the Asst Comr was challenged . (14) It was emphasised in para 2 of the petn to the Comr that the appeal had been dismissed on the merits. Reference was made to S. 30 (3) & it was contended that if an appeal was not disposed of under B. 32 a date & place of hear­ing must be fixed. It was also pointed out that, the appeal could not have been dismissed summarily under B. 32 as the provisions of Br. 29-31 had been complied with. In this petn it was nowhere stated that the Asst Comr was wrong in dismissing the appeal as time barred. In the memo of appeal to the Asst Comr it was admitted that the order of the Supdt of Taxes passed on 18-2-1949 had been communicated to the petnr on 21-2-1949. It was not stated in the petn to the Comr that this admission was erroneous. Nor was it stated as a matter of law that even though the order was communicated to the petnr on 21-2-1949, the period of limitation for appeal could not commence till a notice of demand was served on him under S. 33 of the Act. In these circumstances, it is fairly obvious that the finding of the learned Asst Comr that the appeal itself was barred was not being ques­tioned though one of the questions raised was that the appeal could not have been dismissed summarily on the merits. (15) The question whether the appeal was rightly dismissed as time barred or not was also not included in the list of ques­tions which the petnr desired to be re­ferred to this Ct. ' The learned Comr referred to the question of limitation with a view to showing that no reference at vill could be made to the H. C. as the appeal to the Asst Comr was apparently time barred. ' The learned Comr referred to the question of limitation with a view to showing that no reference at vill could be made to the H. C. as the appeal to the Asst Comr was apparently time barred. There was no prayer before him that the question of limi­tation itself be referred to this Ct. He cannot, therefore, be taken to have refused to refer the question of limitation to this Ct so long as there is no wrong refusal by the Comr to refer a question to this Ct, it has no jurisdiction to make a requisition under Cl. (5) of S. 32. The petnr, in these circumstances, is not entitled to ask for a requisition so far as the alleged wrong decision on the question of limitation is con­cerned. (16) The learned counsel for the petnr next contends that the question of limitation ought to be taken as covered by question 2 which was sought to be referred. Question 2 as contained in the petn for reference is as follows: "Whether the Asst Comr of Taxes could validly reject the appeal, after going into the merits of the case, without fixing a date & place for hearing of the same under S. 30(3) & B. 33 framed under the said Act." (17) It is obvious that this question assumes that the disposal of the appeal was on the merits & the objection is directed against the disposal of the appeal on the merits without notice to the petnr. There is nothing in this question or in the petn itself to suggest that the petnr objected to or felt aggrieved by the summary disposal of the appeal on the issue of limitation. The statement of fact made in the appeal to the Asst Comr that the order of assessment had been communicated to the petnr on 21-2-1949 was not revoked expressly or by implication. The question of law that limitation should start from a date on which notice of demand was served on the petnr also was conspicuous by its absence from the petn. In these circumstances the ques­tion of limitation cannot be considered to have covered by question 2 nor can it be said that the Comr refused to refer it by implication. The question of law that limitation should start from a date on which notice of demand was served on the petnr also was conspicuous by its absence from the petn. In these circumstances the ques­tion of limitation cannot be considered to have covered by question 2 nor can it be said that the Comr refused to refer it by implication. (18) It must be conceded that the petnr could raise this question by his petn as even the order dismissing the appeal on the ground that it was barred by limitation would be an order prejudicial to the petnr within the meaning of Cl. (2) of S. 32. But, if the petnr omits to raise this question before the Comr, he cannot come to this Ct directly under S. 32 (5) for an order directing the Comr to refer a case which he was never asked to refer within 60 days from the date of the appellate order as required by S. 32 (2). (19) The learned counsel for the petnr con­cedes that if the decision on the question of limitation is not considered as covered by ques­tion 2 & the petnr is held not to have challenged the finding of the Asst Comr on this question, this petn cannot succeed. We have found against the petnr on this point. We therefore hold, agreeing with the learned Comr, that the appeal was summarily dismissed as time barred & the further finding embodied in the order that tobacco leaf was taxable was unnecessary & could not be made the basis for a demand 'for reference in the circumstances of the case. The decision of the Asst Cpmr has been correctly treated as only a decision on the ques­tion of limitation & therefore it cannot give .rise to any other questions of law arising from the dispute as to the liability of the petnr to assessment. It will be open to the petnr to raise the question whether tobacco leaf is taxable in any subsequent assessment. (20) For reasons given above, this petn must fail & is dismissed. In view of the peculiar cir­cumstances of the case we make no order as to costs. (21) THADANI C. J: I agree. V.B.B. Petition dismissed.