KRISHNA CHANDRA Vs. STATE OF UTTAR PRADESH LUCKNOW

JUDGEMENT

(1.) THIS is a reference under section 11(1) of the U.P. Sales Tax Act.

(2.) THE assessee did not file any return for the assessment year 1957-58. An action was taken against him under section 21 of the Act. A notice was issued by the Assistant Sales Tax Officer under section 21 which was served by affixation on the dealer on 17th February, 1962. Thereafter the Sales Tax Officer formed the opinion that the Assistant Sales Tax Officer was not competent to issue the notice. He accordingly vacated the earlier notice and issued a fresh one on 30th March, 1962. Subsequently, on 29th March, 1963, an order of assessment was passed under section 21 of the Act. The assessee appealed and contended before the appellate authority that the service of the notice by affixation on 30th March, 1962, was not valid, because service by affixation was permissible after all other modes of service had been exhausted. The Assistant Commissioner (Judicial) did not accept this contention, but remanded the case for a fresh assessment on the ground that the case had not been properly scrutinised by the Sales Tax Officer. The assessee then applied in revision and reiterated his objection that there had been no valid service upon him of a notice under section 21, inasmuch as the service by affixation on 30th March, 1962, was invalid, because other modes of service had not been exhausted. The Judge (Revisions) did not accept this submission, because he was of the opinion that the telegram sent by the dealer on 15th March, 1963, seeking adjournment showed that he had knowledge of the proceedings under section 21 of the Act, with the result that the assessment order under that provision could not be challenged on the ground that the same was passed without notice to the assessee. Thereafter the assessee applied under section 22 for the rectification of the mistake in the revisional order. It was stated in the application that the telegram dated 15th March, 1963, asking for an adjournment did not relate to proceedings under section 21, but related to some other proceedings in respect of which a notice had been served upon him on 8th March, 1963. This application was also rejected by the Judge (Revisions). He, however, allowed the assessee's application under section 11(1) and submitted a statement of the case with regard to the following question of law :

(3.) IT is now settled law that a notice under section 21 of the U.P. Sales Tax Act like a notice under section 147 of the Income-tax Act, 1961, is a jurisdictional notice so that no assessment or reassessment in respect of any escaped turnover can be made, unless a valid notice under section 21 is issued and served upon the assessee within the time prescribed in that behalf. Merely because the assessee had the knowledge of the proceedings under section 21 cannot take the place of the service of a valid notice under section 21. In the instant case on the department's own showing the notice under section 21 had been served upon the assessee by affixation on 30th March, 1962. The question is as to whether that notice had been validly served.