JAGANNATH MANNI LAL Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) The assessee was carrying on business in kerana, dry fruits, etc. In the assessment year 1974-75 regular assessment was made by the assessing authority under Rule 41(7) of the U.P. Sales Tax Rules by an order dated 28th August, 1976. It is pertinent to mention that in the original assessment proceedings the turnover of "makhana" was assessed under the category of "dry fruits" under Notification No. 6628 dated 1st December, 1973. This Court in the case of Hardeo Das Satya Narain v. Commissioner of Sales Tax 1978 UPTC 789 held that makhana is to be taxed as unclassified item. It appears that a notice dated 23rd March, 1979 under Section 21 of the U.P. Sales Tax Act (hereinafter referred to as the Act) was issued to the assessee on the ground that certain turnover has escaped assessment. Ultimately the assessing authority by order dated 20th September, 1979 held that the turnover of makhana should be taxed as unclassified item in view of the decision of this Court in Hardeo Das Satya Narain 1978 UPTC 789 and imposed tax accordingly. The assessee feeling aggrieved preferred an appeal before the Deputy Commissioner (Appeals) which was dismissed and the order passed by the assessing authority was upheld. The second appeal filed by the assessee before the Tribunal under Section 10 of the Act failed. The assessee feeling further aggrieved has come to this Court in the instant revision.

(2.) I have heard Sri J.N. Gupta, learned counsel for the assessee and Sri P.K. Jain, learned counsel for the Revenue. At the very outset I may mention that there is no dispute that the notice dated 23rd March, 1979 under Section 21 of the Act was served on the assessee within the period of limitation. Mr. Gupta contended that since the proceedings initiated under Section 21 of the Act on 23rd March, 1979 were completed on 30th August, 1979, the notice dated 11th September, 1979 was a fresh notice and as such the same was barred by limitation. The question which has to be decided in this case is whether the notice dated 11th September, 1979 is a fresh notice under Section 21 of the Act or it is a letter calling upon the assessee to furnish certain details during the pendency of the proceedings under Section 21 of the Act initiated by means of the notice dated 23rd March, 1979. It may be mentioned here that the Tribunal rejected the aforesaid submission taking the view that the notice dated 11th September, 1979, was a letter calling upon the assessee to appear on 13th September, 1979, to furnish certain details to which the assessee gave its reply on 15th September, 1979 and in the reply it did not take any such objection that the letter dated 11th September, 1979 was a notice under Section 21 of the Act. The Tribunal held that the notice dated 23rd March, 1979 remained intact and was never withdrawn.

(3.) After hearing the counsel for the applicant at some length I had directed the Standing Counsel to produce the original order sheet of the assessing authority relating to the case in order to ascertain whether the proceedings initiated under Section 21 of the Act terminated on 30th August, 1979 as contended by the counsel for the assessee or the proceedings remained pending beyond 30th August, 1979. The order sheet has been produced and a perusal of the same indicates that on 30th August, 1979 the hearing of the case was done but no order was passed. Subsequently by letter dated 11th September, 1979 the assessee was called upon to appear on 13th September, 1979 and to furnish certain details regarding the sale of makhana in the assessment year in question. In view of the aforesaid facts I am unable to accept the contention raised by the counsel for the applicant that the proceedings under Section 21 of the Act initiated by notice dated 23rd March, 1979 terminated on 30th August, 1979. In fact the proceedings under Section 21 of the Act initiated by notice dated 23rd March, 1979 were very much alive and pending on 11th September, 1979.