India Boni Factory vs State of U.P. and Others

We have heard Sri Bharat Ji Agrawal; learned senior advocate, assisted by Sri Piyush Agarwal, learned counsel for the petitioner. Sri S.P. Kesarwani, Additional Chief Standing Counsel, appears for the State respondents. In this writ petition filed in the year 1986, the further proceedings for assessment of the assessment year''s 1979-80, 1980-81 and 1981-82 under the U.P. Sales Tax Act and the Central Sales Tax Act in pursuance to the remand order dated July 31, 1984 passed by the Assistant Commissioner, (Judicial), Sales Tax, Kanpur, subject to any order which may have been passed earlier, were stayed up to August 6, 1986. The interim order was directed to operate till September 2, 1986 and thereafter on February 26, 1986, till further orders.

The writ petitions were dismissed for want of prosecution on July 29, 1999 and were restored on August 3, 1999. Again, on August 26, 2003, the writ petition was dismissed for want of prosecution as the counsel did not have any instructions. The matter was released by learned judges hearing the matter on April 2, 2004. In the aforesaid background, the writ petition has now come up for hearing after 25 years.

The petitioner was assessed to trade tax for the years 1979-80 to 1981-82, both under the U.P. Sales Tax Act and Central Sales Tax Act. The appeals filed by the assessee were allowed on July 31, 1984 and the matter was remanded. It is admitted that the remand order was served on the assessee on October 8, 1984, and on the Department on August 18, 1981. The only question which arises for consideration therefore is whether the remand orders were passed within one year of the date of service of the order in the Department.

Sub-section (4) of section 21 of the Act provides for a limitation of one year for reassessment from the date of receipt of the copy of the order remanding the case by the assessing authority. Section 21(4) is quoted as below:

21(4) If an order of assessment is set aside and the case is remanded for reassessment by any authority under the provisions of this Act or by a competent court, the order of reassessment may be made within one year from the date of receipt by the assessing authority of the copy of the order remanding the case, or by December 31, 1982, whichever is later.

Sri Bharat Ji Agrawal submits that the order of assessment was not passed within one year from August 18, 1984. The notices were not sent to the petitioner for hearing before the assessing authority. After about four adjournments, the counter-affidavit was filed, in which a wrong stand was taken that the order was passed on August 18, 1984. It was admitted by the Department that a duplicate register was prepared in which the order dated August 18, 1985, is alleged to have been passed, but the order was never served on the petitioner.

The court had asked the assessing officer to file his affidavit explaining the circumstances in which the duplicate file was prepared and whether the order was passed within limitation on June 18, 1985.

In the counter-affidavit of Sri S.D. Dwivedi, the Sales Tax Officer, Chandpur, District Bijnor, who was then posted at Kanpur, the following explanation has been given:

(b) That the appellate authority is required to deliver every order passed u/s 9 of the U.P. Sales Tax Act to the parties concerned and as a matter of fact, the appellate orders so received are entered in the receipt register and then entered into a separate register H-12 and the assessing authority within one year from the date of receipt of such orders, passed the assessment orders after remand.

(d) That in the instant case, the appellate orders dated July 31, 1984 were entered in the receipt register on August 22, 1984. However, due to negligence of the clerk concerned, the same was not entered into the register R-12. The departmental proceedings against the clerk concerned are still under progress.

(e) That in the instant case the deponent was required to file a counter-affidavit in Writ Petition Nos. 666, 667 and 658 of 1983 and the appellate orders sent earlier, were not traceable in the office, nor were placed in the original file. The deponent obtained copy of the appellate orders from the office of the Assistant Commissioner (Judicial) and copies whereof are also annexed in the counter-affidavit sworn by the deponent in those writ petitions. However, inasmuch as the deponent was personally aware that these matters had been remanded by the appellate authority, the deponent proceeded to assess the petitioner on remand.

(f) That the appellate orders were entered in receipt register on August 22, 1984 and the proceedings were going to be time-barred within an year from that date. The deponent was also due for transfer as such he issued notices to assess the petitioner on remand. Since the original assessment filed was not readily available in the office but inasmuch as the entire relevant information with regard to the petitioner was available in the confidential file by way of original assessment order and the deponent has also in possession the copy of the appellate orders, these notices as well as the appellate orders were kept in separate file thereinafter called as duplicate file.

(g) That separate notices for the assessment years 1979-80, 1980-81 and 1981-82 (U.P. and Central) were issued to the petitioner and when the process server served the notice, the same had been refused to acknowledge. The notices and the report of process server were kept on duplicate file. Inasmuch as the original file as also duplicate file merged in the said file has been summoned by this honourable court and has been sent by registered on February 4, 1987, which is not possible to annex with this counter-affidavit, but the same can be seen in the aforesaid records. However, the process server register (R-21), which is a register maintained in respect of service of the notices, these notices and also the fact of refusal are duly entered and Photostat copy of the relevant page of the said register is enclosed herewith as annexure CA-1 to this counter-affidavit and at serial No. 56, the name of the petitioner is entered and it was refused on June 13, 1985.

(h) That the process server submitted a report before the deponent and in view of the provisions contained in rule 77(3), the deponent thought this refusal as a proof of service.

(i) That inasmuch as no one appeared on the date of hearing, the deponent passed ex parte order for the aforesaid assessment years and inasmuch as the assessment file was not available, on the date fixed, i.e., June 18, 1985, the assessment orders were also kept in the said duplicate file and entries with regard to the assessment order and demand notice, was made in disposal register (R-5B) as also the despatch register. A Photostat copy of the relevant page of despatch register is being enclosed herewith as annexure CA-2 to this affidavit. The assessment orders passed by the deponent are already on record of this honourable court as annexures CA-1, CA-2 and CA-3 to the counter-affidavit filed by Sri S.R. Dohre.

That inasmuch as the recovery proceedings in respect of these assessment years, namely 1979-80, 1980-81 and 1981-82 under the U.P. and Central, in Writ Petition Nos. 656, 657 and 658 of 1983, the deponent did not serve the assessment orders and the demand notices.

That thereafter on receiving the transfer order, the deponent handed over the charge of the Sales Tax Officer, Sector 16, Kanpur on June 21, 1986.

We have considered the submissions of Sri Bharat Ji Agrawal. He submits that when the assessing authority found that the remand order has not been complied with, he prepared a duplicate file and purportedly prepared an order, making it within limitation. He further submits that the circumstances, namely, that a duplicate file was prepared and was sought to be served, is ample proof of the fact that the remand orders were never served upon the petitioner. The records were falsified to make the orders within limitation.

We do not find any good ground, to disbelieve the detailed explanation given by the Sales Tax Officer. He has explained each and every circumstances which led to the preparation of the duplicate file. An extract of the original records of the notice which were sent to the assessee, along with endorsement of the process server, has been annexed to the counter-affidavit. The explanation that since the writ petitions were filed, the assessment orders were not served, appears to be plausible, but is not worthy of disbelief.

A request was made that the court may summon the records and examine the circumstances in which a duplicate file and the order was prepared. We do not find any necessity to do so, as the concerned Sales Tax Officer has given sufficient explanation from which it can be reasonably gathered that the assessment order was passed within the period of limitation. The writ petition is devoid of merits and is accordingly dismissed.