COMMISSIONER, TRADE TAX Vs. TRIPATHI TRADING CO

JUDGEMENT

(1.) Present 6 revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the orders of Tribunal dated 03.02.2004, 27.02.2004, 22.05.2004 and 25.05.2004 for the assessment years 1990-91, 91-92, 92-93, 93-94. 94-95 and 95-96., by which Tribunal has deleted the penalty levied under Section 15-A(1)(a) of the Act.

(2.) Brief facts of the case referred in the order of the Tribunal are that after obtaining the approval from the Additional Commissioner, Trade Tax under the Proviso to Section 21(2) of the Act, notice under Section 21 of the Act was issued on 24.03.1999. It appears that the notice could not be served by the process server and, thereafter on the order of the officer, notice was served by affixation. Tribunal held that the service of notice under Section 21 of the Act was improper and were not in accordance to Rule 77. Tribunal held that the notice was not signed by the officer. Before the order for the affixation, other modes as provided under Rule 77 has not been adopted and it has not been recorded that the dealer/opposite party (hereinafter referred to as "Dealer") was avoiding the service before passing the order for affixation.

(3.) Learned Standing Counsel is not able to assail the findings recorded by the Tribunal. Learned Counsel for the dealer submitted that while making the affixation, no witness has been taken. Lie submitted that on the facts of the case stated in the order of the Tribunal notice has rightly held to have not been served upon the dealer. In support of his contention he relied upon the decision of this Court in the case of M/s Jain Coal Traders, Moradabad v. CTT reported in 2005 NTN (Vol. 27), 316, M/s National Chemical Products v. State of U.P. and Ors. reported in 2006 NTN (Vol. 29), 120. It is settled principal of law that the notice under Section 21 of the Act is jurisdictional notice and by serving the notice under Section 21 of the Act the authority assumes the jurisdiction to proceed. Thus, proper service of the notice under Section 21 of the Act is condition precedent for the valid proceeding under Section 21 of the Act.