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Rajvinder Singh v. State Of U.P. & Others - WRIT TAX No. 1288 of 2006  RD-AH 14841 (30 August 2006)
Civil Misc. Writ Petition No.1288 of 2006
Rajvindar Singh v. State of U.P. and others
Civil Misc. Writ Petition Nos.1287, 1289, 1290, 1291, 1292, 1293, 1294, 1295, 1308 and 1309 of 2006
Hon'ble R.K.Agrawal, J.
Hon'ble Vikram Nath, J.
(Delivered by R.K.Agrawal, J.)
In this batch of writ petitions, a common question of law has been raised on behalf of the petitioner regarding detention and seizure of the vehicle towards recovery of the amount of penalty and trade tax assessed for not getting Form 34 discharged at the exit check post.
As all these writ petitions raise a common question of law, they have been heard together and are being decided by a common judgment. For convenience, we are treating Civil Misc. Writ Petition No.1288 of 2006 as the leading petition and giving its facts. Except for the truck number, date of order, date of detention, etc, the facts are common.
The petitioner, in Civil Misc. Writ Petition No.1288 of 2006, is the owner of vehicle no.HR 37 B 6055 and is plying the same through transporters for transshipment of goods from one place to another. The vehicle is attached to various transport companies and the petitioner only carries the goods from one place to another. On 16.7.2006 when the vehicle of the petitioner arrived at the entry check post in the State of U.P. at Trade Tax Sahayata Kendra, Naubatpur, district Chandauli, the driver of the vehicle applied for transit pass/trip sheet for the goods loaded in the vehicle. However, instead of issuing the transit pass/trip sheet, the Assistant Commissioner, Trade Tax, Trade Tax Sahayata Kendra, Naubatpur, Chandauli, respondent no.3, detained the vehicle and it is alleged that he issued a notice of demand in a printed form by filling the gap. In the said notice, it was stated that the petitioner had obtained transit pass nos.3007 dated 24.11.2005 from the check post but as per record, the said transit pass had not been got discharged from the exit check post and, therefore, a presumption had been drawn that the goods covered by the said transit pass had been sold within Uttar Pradesh and the petitioner is liable to pay tax and penalty on the same, for which an assessment order and also an order of penalty has been passed and the demand is outstanding, which is sought to be recovered from the petitioner.
The petitioner is resisting the detention of the vehicle on the ground that he is not liable for any tax on the presumed sale of goods within Uttar Pradesh as he is the owner of the truck and not the owner of the goods. It has further been alleged that neither any show cause notice nor any opportunity of hearing was provided to him before passing the assessment order and penalty order and further, the assessment order and penalty order have not been served on him. It has further been stated that the respondent no.3, without issuing the recovery certificate, could not have taken coercive measure for realising the amount outstanding, if any, by detention of the vehicle in question inasmuch as the petitioner is entitled for release of the vehicle as also for quashing of the order of assessment and the penalty order.
In the counter affidavit filed by S.L.Tipathi, Assistant Commissioner, Trade Tax, Trade Tax Sahayata Kendra, Naubatpur, Chandauli, respondent no.3, it has been stated in paragraph 3C that as no intimation was received regarding the surrender/delivery of the authorisation of trip sheet from the exit Sahayata Kendra, two notices both dated 25.1.2006 (wrongly mentioned as 6.2.2006) were issued to the petitioner under Section 7(4) and Section 15A(1)(q) of the U.P. Trade Tax Act. They were dispatched through dispatch nos.2503 and 2504, dated 25.1.2006 fixing the date for 6.2.2006 and requiring the petitioner as to why the assessment be not made and penalty be not imposed. On the date fixed neither the petitioner nor any person on his behalf appeared nor submitted any reply nor sought any adjournment and as such penalty order imposing a penalty of Rs.2,22,540/- and an assessment order assessing to tax at Rs.28,000/- were passed on 10.2.2006 and the same were served upon the petitioner by affixation. However, the copy of the order of assessment and penalty order was personally received by the person in charge of the vehicle on 25.6.2006. The copy of the assessment order and penalty order have been annexed as Annexure No.CA 1 and CA 2 respectively. In paragraph 3D of the counter affidavit it has been stated that as the demand created under the aforesaid order were not paid by the petitioner, the respondent no.3 served a notice dated 16.7.2006 upon the petitioner to show cause as to why arrears be not recovered from the truck in question and in subsequent paragraphs the detention of the truck in question has been justified on this ground.
The matter was taken up by the Court on 28.8.2006 and after going through the averments made in paragraphs 3C and 3D of the counter affidavit filed by S.L.Tripathi, the Court directed the learned Standing Counsel to produce the record relating to the averments made therein in respect of all the cases. In compliance with the direction given by this Court on 28.8.2006, Sri S.P.Kesarwani, learned Standing Counsel, has produced the record of the assessment order and penalty order before the Court. Upon a perusal of which, the Court finds that the notice which has been alleged to have been dispatched on 25.1.2006, has not been served upon the petitioner in accordance with the provisions contained in Rule 77 of the U.P. Trade Tax Rules. Further, affixation of the assessment order and penalty order have not been made at the business premises or the address of the petitioner but it has been pasted on the notice board of the office of the respondent no.3. The service of the notice as also the service of the assessment order and penalty order, therefore, cannot be treated in accordance with the provisions of law and, therefore, it cannot be treated to have been passed after following the principle of equity, fair play and natural justice and also after complying with the provisions of law. In this view of the matter, we are unable to sustain the assessment order and penalty order on the basis of which the recovery is being made from the petitioner and both are hereby set aside.
In view of the foregoing discussions, the writ petitions succeed and are allowed. The assessment order and the penalty order filed alongwith the counter affidavit on the basis of which the recovery is being pressed from the petitioner, are quashed. However, it will be open to the respondent no.3 to pass a fresh order in accordance with law. As the assessment order and penalty order have been quashed, the detention of the vehicle is also set aside and the respondent no.3 is directed to release the vehicle forthwith. If the respondent no.3 decides to take proceeding afresh, he shall sent notice on the address of the petitioner as given in the writ petition, which would be treated as correct address.
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