ORDER A. R. TIWARI, J. - The assessee (M/s. Jai Gurudeo Choona Udyog, Burwaha) has filed this application under section 44(2) of the M.P. General Sales Tax Act, 1958 (for short, "the Act") for calling upon the Tribunal to state the case and refer the questions of law as proposed in this application. Facts lie in a narrow compass. The applicant carries on the business of manufacture of lime at Barwaha in the District of West Nimar. Prior to February 28, 1980, it was not registered as dealer under the Act. The Sales Tax Officer, Flying Squad, Khandwa on February 29, 1980 carried out an inspection of the business premises of the applicant. On the basis of inspection, it was found that the assessee was liable to pay sales tax in respect of its turnover from the period November 3, 1975 to February 27, 1980. The Additional Sales Tax Officer, Scrutiny and Assessment Cell, Flying Squad, thereupon determined the liability of the applicant to pay the sales tax in respect of the aforesaid period under section 4A of the Act by order dated December 26, 1980 (annexure A). The applicant filed the appeal before the Appellate Deputy Commissioner which was registered as Appeal No. 4/KGN/81. In the written submission, the applicant contended that even Assistant Sales Tax Officer could acquire jurisdiction only on prior approval of the Sales Tax Officer and submitted that the order passed by the Additional Sales Tax Officer was ultra vires of his powers. The appellate authority dismissed the appeal on July 5, 1984 (annexure B). The applicant then filed the second appeal before the Tribunal which was registered as Appeal No. 203-KV/84. In this appeal, the applicant raised the question of jurisdiction. The Tribunal, however, declined to consider the objection on the ground that the same was not raised before the Additional Sales Tax Officer during the assessment and dismissed the appeal on February 18, 1985 (annexure C). The applicant then filed an application under section 44(1), of the Act seeking statement of the case and reference of the questions. The application was registered as No. 36-IV/86. It was, however, dismissed. The applicant, therefore, renewed the prayer under section 44(2) of the Act. The questions of law proposed in the reference application and reiterated in the application presented in this Court, are extracted below : "1. The application was registered as No. 36-IV/86. It was, however, dismissed. The applicant, therefore, renewed the prayer under section 44(2) of the Act. The questions of law proposed in the reference application and reiterated in the application presented in this Court, are extracted below : "1. Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that since the question in regard to the jurisdiction of the Sales Tax Officer to determine the liability of the assessee to pay tax under section 4-A of the M.P. General Sales Tax Act, 1958 was not challenged in the first appeal nor a mention about it was made in the assessment order, the date of liability fixed by the Appellate Deputy Commissioner of Sales Tax in first appeal is legal and proper and as such it cannot be challenged in second appeal before the Tribunal ? 2. Whether on the facts and in the circumstances of the case, the assessment made by the assessing authority was without jurisdiction and illegal as the liability of the assessee to pay tax under section 4-A of the M.P. General Sales Tax Act, 1958 was determined by the Sales Tax Officer who had no power and jurisdiction to do so ?" We have heard Shri G. M. Chaphekar, learned senior counsel with Shri Subhash Samvatsar for the applicant - assessee and Shri Piyush Mathur, learned Deputy Government Advocate, for the department - respondent. The learned counsel for the applicant submitted that the question of jurisdiction went to the root of the matter and as such, the Tribunal was not right in declining to entertain and decide the question. Shri Mathur, on the other hand, submitted that as the question was not raised before the lower authority, the assessee was left with no right to raise the question before the Tribunal. In [1976] 37 STC 533 (SC) (Commissioner of Sales Tax, U.P. v. Sarjoo Prasad Ram Kumar), it is laid down as under : "The only other contention advanced by Mr. Karkhanis is that the assessee having not taken any objection as to the jurisdiction before the assessing authority he is precluded from raising that objection at a later stage. This contention is again unacceptable to us. Herein we are concerned with the question of jurisdiction. Karkhanis is that the assessee having not taken any objection as to the jurisdiction before the assessing authority he is precluded from raising that objection at a later stage. This contention is again unacceptable to us. Herein we are concerned with the question of jurisdiction. Unless there is some provision either in the Act or in the Rules framed which precludes the assessee from raising any objection as to jurisdiction, if the same is not raised before the assessing authority, the assessee cannot be precluded from raising that objection at a later stage. An objection as to jurisdiction goes to the root of the case." The Tribunal in Appeal No. 203-iv/84, presented against the order dated July 5, 1984 passed by the Appellate Deputy Commissioner of Sales Tax, Khandwa in Case No. 6/KGN/81 - Provincial, does seem to answer the question about the jurisdiction one way or the other. All that is noted in the order is as reproduced below : There is no conclusion reached on this. In our view, the questions raised do arise out of the order passed by the Tribunal and as such, are required to be referred for our opinion. In the result, we are not satisfied that the refusal was justified and accordingly we require the Tribunal to state the case and refer it to us with regard to the questions noted above for our opinion in terms of section 44(3) of the Act. This reference application is accordingly allowed and the Tribunal is directed to state the case and refer the questions without unnecessary delay. Let a copy of this order be transmitted to the Tribunal under the seal and signature of the Registrar of this Court, for compliance. Application allowed.