ORDER V. K. SINGHAL, J. - In the present matter, the petitioners have challenged the assessment order and the penalty order, both dated February 24, 1995, for the year 1989-90 passed by the respondent. The assessment order was served on the petitioner on March 1, 1995. The time-limit for filing the appeal is 30 days but the appeal was filed on August 25, 1995 with a medical certificate for condonation of delay, which was dismissed being barred by limitation. The Tribunal dismissed the second appeal on October 10, 1995. A revision filed before this Court was also dismissed by the division Bench, on September 15, 1997 (Reported in [1998] 110 STC 195 (Calicut Trading Co. v. Deputy Commissioner of Commercial Taxes). The contention that there was sufficient cause for delay was not accepted. Learned counsel for the petitioner submitted that there is no merger of the order because the first appellate authority or the Tribunal or the High Court has not examined the matter on merit and the appeal was held as not maintainable being barred by limitation. Reliance is placed on the following judgments : (a) Babu Ram Narain Parshad v. Sales Tax Tribunal [1987] 64 STC 468 (P&H), wherein it was held that doctrine of merger is applicable only when the appellate court reverses or modifies or confirms original order on merits. But that principle cannot be applied when the appellate court dismissed the appeal as withdrawn. (b) Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat AIR 1970 SC 1 , in this case it was held that the principle of merger of orders of inferior courts would not become affected or inapplicable by making any distinction between a petition for revision and an appeal. 2. Learned counsel for the petitioner while arguing on merit has stated that the Commercial Tax Officer has acted as prosecutor as well as judge in framing the assessment. Earlier the file was transferred but the transfer orders were withdrawn when the Writ Petition No. 19519 of 1991 was filed but subsequently on October 23, 1991, the power was conferred on the same officer to make the assessment at the place of the assessee. Earlier the file was transferred but the transfer orders were withdrawn when the Writ Petition No. 19519 of 1991 was filed but subsequently on October 23, 1991, the power was conferred on the same officer to make the assessment at the place of the assessee. The assessment was to be completed within a period of three years otherwise there is deemed assessment under section 12(7) and as such the reassessment could not have been done by the Deputy Commissioner of Commercial Taxes as he was not the assessing authority. The word 11 assessment" would not include "reassessment". It is also stated that this Court in the case of G. Basappa Son & Co. v. Commercial Tax Officer [1975] 35 STC 483, has held that if the assessing authority refuses to return the seized record, but calls upon the assessee to produce the account books in support of his returns withholding all the books of account it was considered to be denial of reasonable opportunity. Reliance is also placed on the decision in the case of A. C. Patel v. N. N. Majmudar, Income-tax Officer [1978] 114 ITR 1 (Guj), wherein it was held that if any Income-tax Officer has acted beyond jurisdiction, High Court has the jurisdiction to give the relief and delay in presenting the petition will not affect the relief claimed. 3. The learned High Court Government Pleader placed reliance on the judgment given in the case of Behubar Co. Ltd. v. Commissioner of Taxes [1957] 8 STC 417 (Assam); AIR 1957 Assam 61 wherein it was observed that the High Court can always interfere, by prerogative writs when it finds that manifest injustice is likely to result by unauthorised and unwarranted acts of the taxing authorities purporting to tax under cover of a law which is ultra vires and in excess of constitutional sanctions. 4. The learned High Court Government Pleader has further relied on the judgment in the case of A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 , wherein it was observed as follows : "If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the court dealing with his petition under article 226 to exercise its discretion in his favour. Indeed, the second passage extracted from the judgment of the learned C.J. in Mohammad Nooh's case 1958 SCR 595 at pages 605-607; AIR 1958 SC 86 at page 93, with its reference to the right to appeal being lost 'through no fault of his own' emphasizes this aspect of the Rule." Reliance is also placed on the decision given in the case of Vishwamitra Karyalaya Press v. Authority appointed under Payment of Wages Act, 1936 AIR 1955 All. 702, wherein it was observed that if the remedy is not availed of and it has become time-barred, the petition under article 226 of the Constitution is not maintainable. 5. I have considered over the matter. The Karnataka Sales Tax Act provides the statutory remedy of filing the appeal within 30 days from the date of service of the assessment order. If there is sufficient cause for delay, the appellate authority has the jurisdiction to condone the same. If the delay is not condoned then against such an order an appeal lies to the Appellate Tribunal, which may also examine the matter as to whether there are sufficient grounds for condonation of delay. Even the remedy of revision could be availed of in this Court. After availing all these remedies the contention which is now raised is that there is no merger of the order of assessment with the order of the appellate authority and, therefore, the remedy under article 226 of the Constitution can be availed of. In this regard it may be observed that various judgments which are relied by the learned counsel for the petitioner are on the point where the revisional jurisdiction was to be exercised and it was to be examined as to whether on that particular point, the appellate authority has adjudicated the matter or not. If the matter is not considered by the appellate authority, then it was found that there was no merger and the revisional jurisdiction could be exercised. The dispute here is whether in such a case, where even assuming that there is no merger of the assessment order in the order passed by the appellate authorities and revisional authority, whether extraordinary jurisdiction under article 226 of the Constitution could be exercised. The dispute here is whether in such a case, where even assuming that there is no merger of the assessment order in the order passed by the appellate authorities and revisional authority, whether extraordinary jurisdiction under article 226 of the Constitution could be exercised. I am of the view that after exhausting the remedy under the Act, the power under article 226 cannot be exercised except in a case where the provisions of law under which the tax is levied and sought to be recovered is declared ultra vires by the High Court or by the apex Court or the authority has no jurisdiction to pass the order or there is manifest error. There may be an irregularity or illegality in the exercise of jurisdiction requiring determination of questions where evidence is to be examined or factual aspects exist, but in these cases, the order cannot be considered to be non est or void ab initio and it is only for this reasons that the assessee has to file an appeal and the appellate authorities have to examine the matter. 6. The question may arise that if the first appeal is filed belatedly, then during the pendency of the said appeal, the writ could not have been entertained because the court would come to the conclusion that the matter is pending before the appellate authority and hence no interference is called for. Even after the disposal of the appeal there would have been a position of not entertaining the writ petition as the remedy of second appeal lies under the Act. So is the filing of revision under the KST Act. Thus from the due date of filing of the appeal, till the disposal of the revision by the High Court, writ could not have been entertained. After the disposal of the revision by the High Court, whether the writ could be entertained or not, as observed above it could be entertained where the levy and collection is not under a provision of law which has been declared as ultra vires to the Constitution or the order is without jurisdiction or suffers from manifest error. Same is not the position over here. 7. Same is not the position over here. 7. So far as the merits of the case are concerned, it may be observed that the interpretation of the learned advocate that assessment would not include reassessment and therefore the order of transfer does not confer any jurisdiction to frame the assessment is without any basis. The word "assessment' is comprehensive enough to include "reassessment" as held in A. N. Lakshman Shenoy v. Income-tax Officer [1958] 34 ITR 275 (SC). In the present case since the report of the Intelligence Officer was not considered, proceedings for reassessment were taken. As such it cannot be considered that the order passed by the respondent was without jurisdiction. The question whether the purchases are in the course of export or local purchases for selling the commodity to the exporter is a question of fact and cannot be examined at this stage. 8. The documents which were seized from the possession of the petitioner could be relied upon and it was for him to explain the transactions mentioned therein. In respect of the purchases, when there was no pending order with the petitioner, benefit under section 5(3) of the CST Act cannot be claimed. In pursuance of the notice Mr. Arvind Mulji, produced the books of account as well as whatever inferences could have been drawn from the seized record and the books of account produced, is always a question of fact. Initially, the petitioner prayed for time to file the objections on January 10, 1995. Thereafter M/s. Vasan Associates appeared and filed their return and sought time till February 20, 1995. Objections dated February 16, 1995 were received by the assessing authority and as such it cannot be considered that principles of natural justice have been violated simply because the copies of the seized documents were not delivered to the petitioner. The petitioner was not required to produce the documents which were in possession of the department as was the case in Basappa Son & Co. v. Commercial Tax Officer [1975] 35 STC 483 (Kar). Petitioner has not raised the objection before the assessing authority which have now been raised, as such it could not be considered. 9. Time for retaining the seized document is stated to have extended by the respondent and communicated to the petitioner from time to time. v. Commercial Tax Officer [1975] 35 STC 483 (Kar). Petitioner has not raised the objection before the assessing authority which have now been raised, as such it could not be considered. 9. Time for retaining the seized document is stated to have extended by the respondent and communicated to the petitioner from time to time. In K. B. Handicrafts Emporium v. State of Haryana [1993] 90 STC 477 (SC), it was observed that the question whether a particular sale is penultimate sale is a question of fact and has to be decided by the appropriate authority. The exhibits were verified in the presence of the assessee. The validity of the order passed for transfer of the case or extension have hot been challenged in this petition and in the prayer clause only the order dated February 24, 1995 for the year 1989-90 has been alleged as violative of articles 14, 19, 265 and 300-A of the Constitution. I do not feel any case for interference is made out even on merits. Therefore, I do not consider that the jurisdiction under article 226 could be invoked. Petitions are accordingly dismissed. Petitions dismissed.