DAYA SANKHER YADAV Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) AGGRIEVED by recovery certificate dated 30-9-2007 issued by Taxation Officer, Mahrajganj for recovering a sum of Rs. 5,50,349/- from the petitioner towards passenger tax/additional tax and penalty for the period 1-1-2005 to 30-9-2007 and 1-3-2004 to 30-9-2007 in respect to vehicle No. UHX 0328 (Bus), the petitioner has come up in this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari for quashing the said recovery certificate. He has also sought a writ of mandamus, commanding the respondents to decide his application dated 16-12-2007 for recalling the ex parte order.

(2.) THE petitioner is owner of a bus bearing the aforesaid number which was granted a permanent stage carriage permit on route "khanuwa-Nautanwa-Thunthibari via bhagwanpur", which was valid from 24-5-2000 to 23-5-2005. It is said that the vehicle completed 20 years of age on 25-3-2005 and, therefore, the petitioner sold it to a kabari on 1-4-2005 and intimated about the said sale to Assistant Regional Transport officer, Mahrajganj the same day through registered post but the receipt issued by the postal department has been misplaced. The taxation Officer, Mahrajganj (respondent No. 2)issued a recovery certificate for recovery of tax of Rs. 24,145/- and penalty of rs. 6037/- for the period 1-1-2005 to 30-9-2007 and additional tax of Rs. 4,16,133/-and penalty of Rs. 1,04,034/- for the period 1-3-2004 to 30-9-2007 under Section 20 of the U. P. Motor Vehicles Taxation Act, 1997 (hereinafter referred to as "the 1997 Act" ). It is said that under Rule 18 it was incumbent upon Taxation Officer to give notice to the registered owner before passing an assessment order but no such notice was served upon the petitioner. The impugned recovery is being made without affording any opportunity to the petitioner. He submitted an application dated 16-12-2007 before respondent No. 2 for recall of ex parte order but no order has been passed thereon.

(3.) LEARNED counsel for the petitioner submitted that since liability of additional tax and penalty has been imposed without giving any opportunity to the petitioner, therefore, the entire assessment proceedings and consequential recovery is void ab initio being in violation of principles of natural justice. As such, unless application of the petitioner to recall the aforesaid ex parte order is disposed of, no recovery can proceed against him.