Basheshwar Dayal vs State of U.P.and Others

M. C. Agarwal, J.—By this petition under Article 226 of the Constitution of India the petitioner challenges a demand notice dated 3111980 and order dated 2651981 passed by the respondent No. 2 to whom the petitioner preferred an appeal against the demand notice dated 3111980. It is also prayed that the respondents be restrained from realising any amount in pursuance of demand notice dated 3111980.

I have heard Sri Vishnu Sahai, learned counsel for the petitioner and Sri R. D. Gupta, learned Standing Counsel for the respondents.

The petitioner''s case is that he was a partner in a firm M/s. Poonam Khandsari Udyog, Bijnor that had a Khandsari unit of two crushers. During the year 1976 77 the petitioner worked only one crusher and exercised his option under Section 3 to pay Sugarcane Purchase Tax Act on lump sum bails. Due to paucity of sugarcane the petitioner and worked only one crusher after sending due information to respondents 2 and 3. The petitioner deposited the entire purchase tax yet respondent No. 2 sent an illegal notice dated 221990 demanding a sum of Rs. 3285.33 paise as purchase tax for the period 111977 to 1111977. The petitioner deposited the said amount. According to the petitioner although the entire amount was paid the petitioner received another illegal notice dated 3111980 asking the petitioner to deposit, a sum of Rs. 32421.60 paise within a week. The demand notice did not specify the period for which the amount remained due. It is claimed that the notice was absolutely illegal. According to the petitioner he filed an appeal against that the entire amount of purchase tax had already Been deposited and the notice was illegal. It is averred that the respondent No. 3 namely the Khandsari Inspectorcumassessing officer admitted before the appellate authority that the demand notice is illegal but even then instead of quashing the demand notice, the respondent No. 2 dismissed the appeal holding the same to be barred by time. According to the petitioner, it appears, from the order dated 2651981 passed by the appellate authority that some demand was made by order dated 25101977. It is alleged that the petitioner never received any demand notice No. 3189 dated 26101977 and no such demand notice was never served on him.

In the counteraffidavit filed on behalf for the respondents, it has been stated that for the year 197677, the petitioner exercised the option under Section 3(,i) of the U. P. Sugarcane Purchase Tax Act, 1961 for both the power crushers and is liable to pay purchase tax accordingly. According to the respondents during as inspection made on 30th January, 1977 both the power crushers were found in working condition. According to the respondent prior of demand was served on the petitioner on 26101977 and thereafter several reminders were issued and that the appeal should have been filed within the period of limitation as prescribed in Section 3 (5) of the Act from the service of the notice dated 26101977. The dismissal of the appeal by the respondent No. 1 as barred by time was, therefore, proper.

The purchase tax on the purchase of sugarcane is levied in accordance with he provisions of the U. P. Sugarcane Purchase Tax Act, 1961 and the Rules made thereunder. Section 3 of the Act is the charging section which says that the tax shall be levied and collected in such manner as may be prescribed. Under Rule 6 a I factory has to furnish a return of cane owner of a factory has to furnish a return of cane and tax as prescribed by Rule 5 of the U. P. Sugarcane (Purchase Tax) Rules, 1961. In the return the owner of the factory has to specify the quantity of cane purchased during the preceding month and the amount of tax due under the Act and deposited by him under Rule 4 together with the treasury receipt indicating the deposit. Under Rule 6 (1) the assessing officer has to examine the return and ascertain that the amount of tax has been correctly stated. Subrule (2) then says that if the assessing officer finds that the tax has not been correctly stated, he shall, after giving the owner of the factory a reasonable opportunity of being heard, by order, assess and determine the correct amount of the tax and inform the owner of such factory of the amount so determined. Subrule (3) of Rule 6 then obliges the owner of the factory to deposit the tax within a period of one week of the receipt of the information. Thereafter the collecting authority may in terms of Rule 9 serve a notice of demand upon the owner of a factory.

Subsection (5) of Section 3 provides that any person aggrieved by an order of assessment made under this Act or by an order imposing penal by under subsection (4) may, within thirty days of the intimation to him of the order, prefer an appealThe aforesaid provisions thus indicate that in order to determine the amount of sugarcane purchase tax payable by the owner of a factory the assessing officer has to make an order assessing and determining the correct amount of tax. It is against under order that an appeal can be preferred under Section 3 (5) of the Act and the period of limitation is thirty days from the date of intimation to him of the order.

In the present case neither the petitioner nor the respondents have stated whether or not any order as contemplated by Rule 6 (2), which can be called to be an assessment order, was passed by the assessing officer. The petitioner preferred an appeal against the notice of demand dated 3111980, which has been annexed by the Assistant Sugar Commissioner merely informed the petitioner that the amounts mentioned therein totalling to Rs., 32,421.60 were duo from him and that said amount be deposited within seven days failing which it is will recovered as arrears of land revenue through the Tehsil. The Assistant Sugar Commissioner, is not an assessing authority under the Act. The assessment if any, must have been made by the Khandsari Inspector respondent No. 3. Therefore, an appeal against such a notice is not contemplated under the Act. The mere fact that instead of saying that the appeal was not maintainable for the above reasons the Assistant Sugar Commissioner dismissed the same on the ground that earlier a notice dated 26101977 had been served and the appeal was barred by limitation, does not entitle the petitioner to any relief in the present proceedings. As already stated, the petitioner has also claimed that the respondents be restrained from realising any amount in pursuance of the demand notice dated 3111980. As is evident, the notice dated 3111980 does not create any right in the respondents to demand a money. The right, if any, much have been created by the order passed under Rule 6 read with Section 3 of the Act. Restraining the respondents from realising the amount in pursuance of the notice dated 3111980 would not be feasible if the amount so demanded therein have been levied on the petitioner in accordance with the provisions of the Act. Further, according to the respondents this was merely another notice in the chain of several other notices. Even if this notice is cancelled the demand if it was legally realised .would not be obliterated and can be legally pressed against the petitioner in accordance with law.

For the above reasons, this writ petition is misconceived. The petitioner on receipt of the notice dated 3111980 should hive asked the authority to let him know how the aforefaid demand have been created and to furnish him the copies of the relevant orders. He did not do so nor did he obtain the copies of the relevant orders before filing the present writ petition so much so he does not even specifically state that no assessment order as contemplated under Rule 6 was actually made against him. He also does not allege that no information or intimation within Rule 6(2) or Section 3 (5) was sent to him.

In view of the above discussions, this writ petition deserve dismissal. It is however, made clear that the dismissal of this writ petitionwill not debar the petitioner from challenging the assessment orders if any, or the recovery certificate when issued in appropriate legal proceedings.