High Court of Judicature at Allahabad
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Daryao Singh v. State Of U.P. & Others - WRIT TAX No. 572 of 2006  RD-AH 9867 (19 May 2006)
CIVIL MISC. WRIT PETITION NO. 572 OF 2006
Shri Daryao Singh. ....Petitioner
State of U.P. and others. ......Respondents
Hon'ble Sushil. Harkauli, J.
Hon'ble Rajes Kumar, J.
Assessment order dated 30.07.2005 has been passed treating the petitioner to be one of the partners of a partnership firm and trade tax has been imposed and the same is sought to be recovered. The grievance of the petitioner is that he was not served with the copy of the assessment order in accordance with section 8 (1-A) of U.P. Trade Tax Act (hereinafter referred to as "Act") and without such service, no recovery can be made. The argument is not tenable because when the assessment order has been passed in the case of a partnership firm, service on any one of the partners is sufficient and it does not appear to be necessary to serve each and every partner separately.
The grievance of the petitioner is that the petitioner is not a partner in the firm. Further grievance is that the petitioner has not been heard before passing of the assessment order.
Learned counsel for the petitioner submitted that the representation made by the petitioner should be directed to be decided by the assessing authority.
Ex-parte assessment order can be set aside under section 30 of the Act. Rectifying of error is also permissible but where a positive finding with reasoning have been recorded that the petitioner is partner, it would not be a case of rectification of error but review of the assessment order, which may not be permissible. Therefore, petitioner has option of availing the remedy under section 30 of the Act or availing the remedy of appeal under section 9 of the Act against such assessment order. Because the petitioner has obtained the certified copy of the assessment order, therefore, now the service of the assessment order on the petitioner will be deemed on the date on which the certified copy of the assessment order was received by the petitioner and limitation will be calculated accordingly.
Certified copy has been filed in original alongwith supplementary affidavit. It will be returned to the petitioner by the Registry upon supply of a typed copy of the assessment order, if the petitioner applied for the same.
In order to enable the petitioner to avail the remedy under section 9 of the Act or under section 30 of the Act, we direct that the recovery will not be made for a period of fifteen days from today. Further stay may be sought in the proceedings to be taken by the petitioner under section 9 of the Act or under section 30 of the Act and if such stay is sought, the authority will decide the prayer on merits without being influenced by anything stated in this order.
The writ petition is disposed of accordingly.
Certified copy of this order may be supplied to the learned counsel for the parties on payment of usual charges within twenty-four hours.
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