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The Commissioner Of Trade Tax, U.P. Lucknow v. S/S Saraswani Sugar Works . - SALES/TRADE TAX REVISION DEFECTIVE No. 287 of 1999  RD-AH 16536 (20 September 2006)
TRADE TAX REVISION NO.(287) of 1999
The Commissioner, Trade Tax, U.P., Lucknow. Applicant
M/S Sarawani Sugar Works, Hapur. Opp.party
Hon'ble Rajes Kumar, J.
Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 16th November, 1998 relating to the assessment year, 1985-86.
Proceeding under section 21 of the Act was initiated by the assessing authority on the basis of the information received after passing the original assessment order on 31st March 1987 under the Central Sales Tax Act. From the perusal of the assessment order, it appears that the notice no.5825 dated 28th March, 1990 was issued fixing the date on 31st March, 1990. Assessing authority observed that the said notice was served on the opposite party. It appears that further notice was issued on 18th September, 1990 and 26th September, 1990 relating to the hearing of the case. It is not clear whether it was properly served or not. However, opposite party did not appear before the assessing authority and, therefore, ex-parte order was passed on 27th September, 1990. Opposite party filed appeal before the Assistant Commissioner (Judicial), Sales Tax, Meerut. Assistant Commissioner (Judicial), Sales Tax, Meerut vide order dated 23rd March, 1992 allowed the appeal and remanded back the matter to the assessing authority for passing fresh order after giving proper opportunity of hearing. Aggrieved by the order of the Assistant Commissioner (Judicial), Sales Tax, Meerut, opposite party filed second appeal before the Tribunal. Tribunal by the impugned order allowed the appeal and deleted the tax assessed under section 21 of the Act. Tribunal has allowed the appeal on the ground that the notice under section 21 of the Act was not served in accordance to the law and, therefore, the assessing authority had no jurisdiction to pass order under section 21 of the Act.
Heard learned Standing Counsel. Despite service of notice, no one appears on behalf of the opposite party.
Learned Standing Counsel submitted that the Tribunal has only examined the service of the notice dated 26th September, 1990 and has not examined the notice issued under section 21 of the Act on 28th March, 1990 fixing the date on 31st March, 1990 which was duly served. He submitted that the notice no.5825 dated 28th March, 1990 was the notice under section 21 of the Act and was duly served and subsequent notice was only for fixing the date of hearing and the Tribunal has completely ignored the service of the notice dated 28th March, 1990, therefore, the order of the Tribunal is erroneous.
I find substance in the argument of the learned Standing Counsel. Perusal of the assessment order reveals that the notice no. 5825 dated 28th March, 1990 under section 21 of the Act fixing the date on 31st March, 1990 as per assessment order was duly served. Tribunal has not said that the notice was not served. Tribunal has examined the service of the notice issued on 26th September, 1990. Since the notice issued under section 21of the Act dated 28th March, 1990 was duly served, the assessing authority had jurisdiction to proceed and pass order under section 21 of the Act. In case, if the subsequent notice fixing the date of hearing was not served then for want of opportunity, matter can be sent back to the assessing authority to pass assessment order afresh, which in the present case the first appellate authority has done.
In this view of the matter, the order of the Tribunal is not sustainable and is hereby set aside and the order of the first appellate authority dated 23rd March, 1992 is restored.
In the result, revision is allowed. Order of the Tribunal is set aside and the order of the first appellate authority is restored.
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