Over 2 lakh Indian cases. Search powered by Google!

Case Details

M/S NARAYAN SOAP WORKS versus ADDL.COMMISSIONER, TRADE TAX,KANPUR & ANOTHER

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


M/S Narayan Soap Works v. Addl.Commissioner, Trade Tax,Kanpur & Another - WRIT TAX No. 216 of 2002 [2004] RD-AH 1393 (10 November 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 216 of  2002

M/s Narayan Soap Works

vs.

Addl. Commissioner, Trade Tax, Kanpur and other.

Hon'ble R.K.Agrawal, J.

Hon'ble Vikram Nath, J.

(Delivered by R.K.Agrawal, J.)

By means of the present writ petition filed under Article 226 of the Constitution of India the petitioner- M/s Narain Soap Works seeks the following reliefs:

i) issue a suitable writ, order or direction in the nature of certiorari and quash the order dated 25.1.2002 (Annexure 3) passed by the Trade Tax Officer, Kanpur for the A.Y. 1981-82 (U.P.) and also quash all consequential proceedings.

ii) issue a suitable writ order or direction in the nature of mandamus commanding respondent no.2 not to initiate any proceedings of reassessment against the petitioner for the A.Y. 1981-82 (U.P.)

iii) award the costs of the petition to the petitioner".

Briefly stated the facts giving rise to the present petition are as follows:

The petitioner is a partnership firm and is engaged in the business of manufacture and sale of soap. It is registered as a dealer both under the provisions of U.P. Trade Tax Act, 1948 (hereinafter referred to as the U.P.Act) and Central Salex Tax Act, 1956 (hereinafter referred to as the Central Act).  For the Assessment Year 1981-82 under the U.P. Act the petitioner disclosed a taxable turnover of Rs. 5,16,600.70 and admitted its tax liability of Rs. 30,965.30.  The Trade tax Officer, Sector 12 Kanpur- respondent no.2 who is the assessing authority of the petitioner did not accept the books of account and the disclosed turnover of the petitioner and made a best judgement assessment determining the tax liability of Rs. 48,965.30 on a total turnover of Rs. 8,16,868/-. Feeling aggrieved by the assessment order the petitioner preferred an appeal before the Assistant Commissioner (Judicial), Trade Tax Kanpur, who vide order dated 30th April, 1986 had dismissed the appeal. Still feeling aggrieved the petitioner preferred second appeal before the Trade Tax Tribunal, Kanpur. The Tribunal vide order dated 28th April, 1994 had allowed the appeal and after setting aside the assessment order had directed the Assessing Authority to pass a fresh assessment order in accordance with the direction issued by it. The order dated 28th April, 1994 passed by the Tribunal had been received by the Assessing Authority on 9th June, 1994. According to the petitioner, the respondent no.2 did not pass any order in compliance with and in pursuance of the order dated 28th April, 1994 passed by the Trade Tax Tribunal within the period of one year from the date of receipt of the order by him as provided under Sub-section (4) of Section 21 of the U.P.Act which expired on 8th June, 1995. However, to get over this situation, the respondent no.2 made a proposal to the Additional Commissioner, Trade Tax, Kanpur- respondent no.1 to give sanction for initiating proceeding under Section 21 of the U.P. Act. The respondent no.1 issued a show-cause notice on 16th January, 2002 purporting to be under sub-section (2) of Section 21 of the U.P.Act calling upon the petitioner to show-cause why reassessment proceeding may not be initiated. In the notice it has been mentioned that the fresh assessment order was not passed in compliance of the order of the Tribunal within the prescribed period and, therefore, necessity has arisen to initiate proceedings under Section 21 of the Act. In compliance of the aforesaid notice the petitioner submitted its reply on 19th January, 2002 raising the question of limitation as also the jurisdiction of the authority to issue direction for initiation of the reassessment proceedings. In its reply the petitioner has also relied upon the following two decisions:

1. Hamirmal Kewal Chand vs. C.S.T. [1980 UPTC 594] and

2. M/s Modi Industries Ltd. vs. CST  [1980 (45) STC 423]

The Additional Commissioner of Trade Tax, Kanpur vide order dated 25th January, 2002 had accorded approval to the Trade Tax Officer to initiate proceedings under Section 21 of the U.P.Act. The order dated 25th January, 2002 is under challenge in the present writ petition.

We have heard Sri S.D.Singh, learned counsel for the petitioner and Sri K.M.Sahai, learned standing counsel for the respondent.

The learned counsel for the petitioner submitted that under sub-section (4) of Section 21 of the U.P.Act a fresh order in pursuance of the order of remand passed by the appellate authority or any other superior authority could have been passed by the assessing authority only within a period of one year from the date of receipt of such an order and not beyond it and in the present case as the order of remand having been received by the assessing authority on 9th June, 1994, the fresh order could have been passed only upto 8th June, 1995 and not beyond that period. According to him what could not have been done directly should not be permitted to be done indirectly by taking recourse to sub-section (2) of Section 21 of the U.P.Act. According to him provisions of sub-section (2) of Section 21 of the U.P.Act has been made subject to other provisions of Section 21 of the U.P.Act and, therefore, in view of the specific period of limitation provided under Sub-section (4) of Section 21 of the U.P.Act for passing an order in pursuance of an order of remand, the provisions of sub-section (2) of Section 21 of the U.P.Act are not applicable and could not have been resorted to. He further submitted that the petitioner had filed its regular return and during the pendency of the return no reassessment proceeding can be initiated. In support of the aforesaid submissions, he has relied upon the following decisions:

1. The Commissiner of Income-tax Mysore, Travencore-Cochin and Coorg, Bangalore vs. The Indo Mercantile Bank Ltd. (AIR 1959 SC 713).

2. Hamirmal Kewal Chand vs. CST, U.P.Lucknow (1980 UPTC 594 (Alld).

3. M/s Modi Industries Ltd. vs. CST  [1980 (45) STC 423 (Alld)]

4. M/s Ram Dayal Harbilas vs. Commissioner of Sales Tax (1979 UPTC 999 (Alld. F.B.)

5. M/s S.S.Brothers vs. Commissioner of Sales Tax (2001 UPTC 34 (Alld.)

Sri K.M.Sahai, learned standing counsel submitted that as the order in pursuance of the remand order passed by the Tribunal had not been passed by the Assessing Authority- respondent no.2 within the stipulated period as provided under sub-section (4) of Section 21 of the U.P.Act it would be deemed that the assessment in the present case has escaped and, therefore, the respondents were within their jurisdiction in exercise of their powers conferred under sub-section (2) of Section 21 of the U.P.Act and also in granting approval under the proviso to sub-section (2) of Section 21 of the U.P. Act as the limitation under the main sub-section (2) of Section 21 of the U.P. Act had expired in the present case. He further submitted that the Apex Court in the case of  Additional Commissioner (Legal) and another vs. M/s Jyoti Traders and another (1999 UPTC 45) has held that under the proviso to sub-section (2) of  Section 21 of the U.P.Act all the past assessment can be reopened. He, thus submitted that the order dated 25th January, 2002 passed by respondent no.1 does not call for any interference.

Having heard the learned counsel for the parties we find that the facts are not in dispute. The question is as to whether if the provision of sub-section (4) of Section 21 of the U.P. Act are applicable in a given case whether recourse to sub-section (2) of Section 21 of the U.P. Act can be taken or not.

For appreciating the issue raised in the present writ petition, we consider it necessary to reproduce Section 21 of the U.P. Act which reads as under:

"Section 21. Assessment of tax on the turnover not assessed       during the year.

(1) If the assessing authority has reason to believe that the whole or any part of the turnover of the dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer or tax according to law:

Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment, or full assessment as the case may be.

Explanation 1:

Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment.

Explanation II:

For the purposes of this section and of section 22, "assessing authority" means the officer or authority who passed the earlier assessment order, if any, and includes the officer or authority having jurisdiction for the time being to assess the dealer.

Explanation III:

Notwithstanding the issuance of notice under this-section, where an order of assessment or re-assessment is in existence from before the issuance of such notice it shall continue to be effective as such, until varied by an order of assessment or re -assessment made under this section in pursuance of such notice.

(2) Except as otherwise provided in this section, no order of assessment or the re-assessment under any provision of this Act or any assessment year shall be made after the expiration of two years from the end of such year or March 31, 1998, whichever is later:

Provided that if the Commissioner on his own or on the basis of reasons recorded by the assessing authority, is satisfied that it is just and expedient so to do authorizes the assessing authority in that behalf, such assessment or the reassessment may be made after the expiration of the period aforesaid but not after the expiration of six years from the end of such year or March 31,2002, whichever is later notwithstanding that such assessment or the re-assessment may involve a change of opinion:

Provided further that the assessment or re -assessment for the assessment year 1987-88 may be made by March 31, 1993:

Provided also that if the eligibility certificate granted under section 4-A has been amended or cancelled by the Commissioner under sub-section (3) of section 4-A, the order of assessment or re-assessment may be made within one year from the date of receipt by the assessing authority of the copy of the order amending or cancelling the aforesaid certificate or by March 31, 1995, whichever is later:

Provided also that the assessment or re-assessment for the assessment year 1989-90 may be made by March 31, 1995.

(3) Where the notice under sub-section (1) for any assessment year has been served within the period specified in sub-section (2), the order of assessment or re-assessment in pursuance thereof may be made within six months, after the expiration of such period.

(4) If an order of assessment is set aside and the case is remanded for re-assessment by any authority under the provisions of this Act or by a competent Court, the order of re-assessment may be made within one year from the date of receipt by the Assessing Authority of the copy of the order remanding the case, or by December 31, 1982, whichever is later.

(4-A)  If an order of assessment is quashed on the ground of want of jurisdiction of the assessing authority or any other like ground, by any competent authority or Court, fresh order of assessment may be made by the assessing authority having jurisdiction within one year from the date of receipt by the assessing authority whose order is so quashed, of the copy of the order of such authority or court by March 31, 1993 whichever is later.

(5) If an order of assessment or re-assessments for any assessment year is set aside under section 30, a fresh order of assessment or re-assessment for that year may be made within six months from the date on which such earlier order was set aside.

(5-A)   If an exparte order of assessment or re-assessment or penalty passed against a sick unit is set aside by the State Government by an order under sub-section (2) of Section 38, a fresh order of assessment or re-assessment or penalty, as the case may be, for that year may be made within one year from the date of receipt of such order of State Government by the assessing authority concerned.

(6) Where the proceedings for assessment or re-assessment for any assessment year remain stayed under the orders of any court or authority, the period commencing on the date of stay order and ending with the date of receipt by the Assessing Authority concerned of the order vacating the stay, shall be excluded in computing the period of limitation provided in this section.

Provided that if in so computing the period of limitation comes to less than six months, such assessment or re-assessment may be made within six months from the date of receipt by the Assessing Authority of the order vacating the stay.

(7) Where in the assessment or re-assessment of a dealer for any assessment year, any Assessing Authority,-

(a) has included any turnover and any superior authority or Court has, in exercise of the powers lawfully vested in it, held such turnover to relate the assessment-

(i) of such dealer for any other assessment year, or

(ii) of such dealer under the Central Sales Tax Act, 1956, or

(iii) of any other dealer, whether under this Act, or under the Central Salex Tax Act, 1965,

(b) has not included any turnover on the ground that it relates to assessment under the Central Sales Tax Act, 1956 and any superior authority or Court has, in exercise of the powers lawfully vested in it, held such turnover to relate to the assessment of that dealer under this Act, whether for such assessment year or any other assessment year, then nothing contained in this section limiting the time shall apply to assessment or re-assessment whether under this Act or under the Central Sales Tax Act, 1956 of such dealer or such other dealer, relating to such assessment year or such other assessment year, as the case may be."

From a reading of the aforesaid provisions it is clear that sub-section (1) of Section 21 of the U.P. Act empowers the assessing authority to assess or re-assess the dealer if he has reason to believe that the whole or any part of the turnover of the dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at the rate lower than that which it is assessable under the U.P.Act. Under sub-section (2) limitation for assessment or re-assessment has been provided. In the main clause it is two years from the end of the assessment year or March, 31, 1998 whichever is later. However, in the first proviso the Commissioner has been empowered to authorize the Assessing Authority to make assessment or re-assessment after expiry of the period mentioned in the main provision of sub-section (2) but not after the expiration of six years from the end of such assessment year or March 31, 2002, whichever is later notwithstanding that such assessment or re-assessment may involve a change of opinion. In the second proviso assessment or re-assessment for the assessment year 1987-88 can be made upto 31st March, 1993. In the fourth proviso assessment or re-assessment for the assessment year 1989-90 can be made upto 31st March, 1995. The period of limitation prescribed in sub-section (2) of Section 21 of the U.P.Act will not apply if the case falls under any other sub-sections to Section 21 of the U.P.Act as it starts with "except as otherwise provided in this section". Under sub-section (3) of Section 21 of the U.P.Act if the notice under sub-section (1) has been served within the period specified in sub-section (2), the order of assessment or re-assessment can be made within six months after the expiration of  the period provided under sub-section (2). However, under sub-Section (4) if an order of assessment is set aside and the case is remanded for re-assessment by any authority under the provisions of the U.P.Act or by a competent Court, the order of re-assessment has to be made within one year from the date of receipt by the Assessing Authority of the copy of the remand order or by December 31, 1982 whichever is later. Under sub-section (4-A) the Assessing Authority has been empowered to pass fresh assessment order within one year from the date of receipt by the Assessing Authority whose order is so quashed, on the ground of want of jurisdiction or by 31st March, 1993 whichever is later. However, under sub-section (5) if the order is set aside under Section 30 of the U.P.Act, a fresh order of assessment or re-assessment  for that year has to be made within six months from the date when such order is set aside. However under sub-section (5-A) this limitation of six months has been extended to one year in a case of sick unit. Under sub-section (6) the period during which the proceeding have been stayed has to be excluded while computing the limitation with the stipulation that the minimum period of six months should be available with the Assessing Authority for making the assessment or re-assessment. Under Sub-section (6-A) where the matter involving a question of law having a direct bearing on the assessment or re-assessment in question in respect of the assessee is pending before the High Court or Supreme Court, such period is to be excluded in computing the period of limitation. Under sub-section (7) the bar of limitation has been lifted in certain circumstances.

In the case of Commissiner of Income-tax Mysore, Travencore-Cochin and Coorg, Bangalore (supra) the Apex Court has held that the proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily, it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso and has to be construed harmoniously in the main enactment.

In the case of Punjab Sikh Regular Motor Service, Moudhapara, Raipur vs. Regional Transport Authority, Raipur and another (AIR 1966 SC 1318) the Apex Court has considered the provision of Section 63 of the Motor Vehicles Act 1939 which reads as follows:

"Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region, shall not be valid in any other region, unless the permit has been countersigned, by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned."

and has held that Section 68(1) of the aforesaid Act confers authority upon the State Government  to make Rules for the purpose of carrying into effect the provisions of Chapter IV of the Act. The Apex Court has further held that the Legislature has by providing in the opening part of sub-section (1) of Section 63 ''Except as may be otherwise prescribed' made the provision subject to the Rules framed by the State Government under Section 68 of the Motor Vehicles Act and provisions of Rule 63, therefore, must supersede the direction contained in Section 63(1) of the Statute. Thus the phrase ''except as provided' is analogous to the phrase ''subject to' which canvasses the same meaning.

In the case of C & J Clark Ltd. v. Inland Revenue Commissioners [(1973) 2 All ER 513 (Ch D] it has been held that phrase ''subject to' is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision.

In the case of  Commissioner of Wealth Tax, Andhra Pradesh, Hyderabad vs. Trustees of H.E.H. Nizam's Family (AIR 1977 SC 2103) the Apex Court has held that where Section 3 of the Wealth Tax Act, 1957 imposes the charge of wealth tax ''subject to the other provisions' of the Act but includes Section 21 of the said Act and, therefore, Section 3 is expressly subject to Section 21 and it must yield to that section insofar as the latter makes special provision for assessment of a trustee of a trust.

In the case of South India Corporation (P) Ltd. vs. Secretary, Board of Revenue, Trivandrum and another (AIR 1964 SC 207 ) the Apex Court has held that expression ''subject to other provisions of the Constitution' occurring in Article 372  means that if there is an irreconcilable conflict between the pre-existing law and the provisions of the Constitution, the latter will prevail. The expression ''subject to' conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject.

In the case of The Kerala State Electricity Board vs. The Indian Aluminium Co.Ltd. and others (AIR 1976 SC 1031)  the Apex Court while considering the provisions of Article 254 of the Constitution of India and the phrase ''notwithstanding' in Clause (1) and ''subject to' in Clause (3) has held that they mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the ''special' excludes the ''general' and the general entry in List II is subject to the special entry in List I.

In the case of Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (AIR 1987 SC 117) the Apex Court has held that phrase ''subject to' conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject.

In the case of M/s Raichand Amulakh Shah and another vs. Union of India (AIR 1964 SC 1268) the Apex Court has held that if the opening words "Except as provided in this Act" in Section 26 of the Railways Act, 1890 are ignored, the bar appears to be comprehensive, for it may take in its sweep any dereliction of duty by the railway administration in respect of matters covered by the provisions of the said chapter. But such an intention to give a blanket licence to the railway administration to contravene the provisions of Chapter V of the Railways Act shall not be attributed to the Legislature unless the section is very clear to that effect. The opening words "Except as provided in this Act" limit the operation of the bar. It can reasonably be interpreted to mean that the bar of a suit is limited to matters in respect whereof the act has provided a remedy.

In the case of M/s Jetha Bai & Sons, Jew Town, Cochin, etc. vs. M/s Sunderdass Rathenai etc. (AIR 1988 SC 812) the Apex Court has held that the third aspect is that the Legislature has not merely conferred finality to the decision of an Appellate Authority but has further laid down that the decision shall not be liable to be called in question in any Court of law except as provided for in Section 20 of Kerala Buildings (Lease and Rent Control Act, 1965). These additional words clearly spell out the prohibition or exclusion of a second revision under S.115 C.P.C. to the High Court against a revisional order passed by the District Court under S.20 of the Act.

In the case of Ram Lal and another vs. State of Jammu and Kashmir (AIR 1999 SC 895) the Apex Court has held that Section 320, Code of Criminal Procedure which deals with "compounding of offences" provides two Tables therein, one containing descriptions of offences which can be compounded by the person mentioned in it, and the other containing descriptions of offences which can be compounded with the permission of the Court by the persons indicated therein. Only such offences as are included in the said two table can be compounded and none else. Sub-section (9) of Section 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms:

"9. No offence shall be compounded except as provided by this section."

Thus the words ''except as otherwise provided' herein and ''subject to' are interchangeable and convey the same meaning.  Applying the interpretation given to the words ''except as otherwise provided herein' or ''subject to' in the aforesaid decisions to the facts of the present case, we find that sub-section (4) of Section 21 of the U.P. Act the specific period of limitation, i.e. one year has been provided for making assessment where an order of assessment or re-assessment has been set aside by the higher authority and the matter is remanded to the Assessing Authority to make a fresh assessment. As sub-section (2) of Section 21 of the U.P.Act opens with the phrase ''except as otherwise provided in this section' the said provision would not be applicable to the case where sub-section (4) is applicable as it would be subject to the provisions of sub-section (4) which deals with the specific case. The phrase ''except as otherwise provided in this section would mean that the provisions of sub-section (2) have been made subject to other provisions of Section 21 of the U.P.Act providing the limitation for making the assessment or re-assessment. The limitation provided in sub-section (2) of Section 21 of the U.P.Act covers general cases whereas limitation provided in sub-sections (3),(4), (4A), (5) and (5A) are specific. Thus where a case falls under any other sub-sections of Section 21 of the U.P.Act the provision of Sub-section (2) of Section 21 of the U.P.Act stands excluded.

In the case of M/s Jyoti Traders (supra) the Apex Court has held that the sub-section (2) of Section 21 of the U.P.Act and the proviso added to it leave no one in doubt that as on the date when the proviso came into force the Commissioner of Sales Tax could authorize making of assessment or re-assessment after expiration of eight years from the end of that particular assessment year and it is immaterial if a period for assessment or re-assessment under sub-section (2) of Section 21 of the U.P.Act before the addition of the said proviso had expired. The proviso to sub-section (2) of Section 21 of the U.P.Act does not put any embargo on the Commissioner of Sales Tax not to open the assessment if period, as specified earlier had expired before the proviso came into operation. The proviso is operative from 9th February, 1991 and a bare reading of the proviso shows that the operation of this proviso relates and encompaces back to previous eight assessment years. The aforesaid decision is of no help to the respondent as in the aforesaid decision the Apex Court had not considered the question as to whether if the provisions of Section (4) are applicable can recourse to sub-section (2) of Section 21 of the U.P.Act be taken when the said sub-section opens with ''except as otherwise provided in this section'.

In the case of Hamirmal Kewal Chand (supra) this Court has held that the matter is settled beyond controversy that during pendency of original proceedings there is no escaped turnover and therefore proceedings for escaped assessment could not be taken. While holding so this Court has relied upon a decision of the Apex Court in Ghanshyam Das vs. Regional Assistant Commissioner of Sales Tax, [(1963) 14 STC 976]. In the case of Modi Industries Ltd. (supra) also similar view has been taken by this Court.

In the case of M/s S.S.Brothers (supra) this Court has held that provisions of sub-sections (4) and (5) of Section 21 of the U.P.Act operate in different situation. The limitation provided in sub-section (4) applies where assessment order is to be passed in pursuance of the order of remand passed by an authority under the provisions of the U.P.Act whereas the limitation provided in sub-section (5) applies to a case where an order of assessment is set aside under Section 30 of the U.P.Act. We have already held hereinbefore that where sub-section (4) is applicable, sub-section (2) of Section 21 of the U.P. Act is not applicable.

In the case of M/s Ram Dayal Harbilas (supra) a Full Bench of this Court has held that where the appellant authority set asides an assessment order and directs a fresh assessment to be made, the fresh assessment has to be made in consequence of the directions contained in the order made under Section 9 of the U.P.Act. Such assessment proceedings will have to be taken in accordance with Section 7 of the U.P. Act i.e. in accordance with the powers which the assessing authority originally had and for such proceedings the period of limitation as prescribed in sub-section (2) of Section 21 of the U.P.Act would not be available. The Full Bench has further held as follows:

"When the assessment is set aside in appeal and the cae is sent back to the assessing authority for making afresh assessment, the original proceedings under Section 7 are revived. As a consequence of the remand order, the assessing authority passes afresh assessment order in original proceedings under Section 7 of the Act. The earlier assessment does not survive and so long as the fresh assessment is not made and the proceedings for the assessment are continuing, no question of any turnover escaping assessment as contemplated by Section 21 of the Act can possibly arise."

In view of the principles laid down by this Court which is based upon the decision of the Apex Court in the case of Ghanshyam Das (supra) that when the assessment proceedings pursuant to the order of remand has been pending, the proceedings under Section 21 of the U.P. Act could not have been initiated.

Thus, in any view of the matter, the proceedings under Section 21 of the U.P.Act could not have been initiated at all as in the present case it cannot be said that there has been any escapement of turnover as the original assessment was pending pursuant to the order of remand passed by the Tribunal. Moreover, in view of the period of limitation of one year, as prescribed under sub-section (4) of Section 21 of the U.P.Act, had expired, recourse to the proviso to sub-section (2) of Section 21 of the U.P.Act cannot be taken as the said proviso is not applicable in the present case.

In view of the foregoing discussions, we are of the considered opinion that the proceedings initiated under Section 21 of the U.P.Act by issuing notice dated 16th January, 2002 and according approval to the Trade Tax Officer, Kanpur- respondent no.2 under the proviso to sub-section (2) of Section 21 of the U.P.Act to initiate proceedings under Section 21 of the U.P.Act vide order dated 25th January, 2002 are wholly without jurisdiction and therefore, they are liable to be quashed.

In the result the writ petition succeeds and is allowed. The notice dated 16th January, 2002 and the order dated 25th January, 2002 are hereby quashed. However, there shall be no order as to costs.

10.11.2004

MZ.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.