JUDGMENT S. Manchanda, J. - This is a case stated under Section 11(1) of the U.P. Sales Tax Act (hereinafter referred to as the Act). The questions referred are: "1. Whether under circumstances of the case, as stated above, it can be held that a notice under Section 21 was issued when there is neither any information of notice being issued on the order-sheet nor there is any copy of the notice under Section 21 on the record? 2. Whether in view of the provisions of the Rule 77 the service by affixation was a valid and proper service under the circumstances of the case as stated above? 3. Whether in the case of a dissolved and discontinued firm the notice should have been issued to the partner and assessment and tax levied on the partners individually or only notice in the name of the firm and assessment and tax levied on the firm was sufficient?" 2. The material facts are these: The assessee carried on the business in mill made cloth, imported and purchased locally. The relevant assessment year is 1954-55. A notice under Section 21 of the Act was said to have been issued by the Sales Tax Officer on the 16th of March, 1959, to the assessee firm which had, however, been dissolved three years prior thereto. The notice is said to have required the assessee's appearance before the Sales Tax Officer on the 19th of March, 1959. According to the report of the process server the dealer had refused to accept the notice and the service was, therefore, effected by affixation on the 18th of March, 1959, at the last known place of business. As no-one appeared, an ex parte assessment was made by the Sales Tax Officer on the 20th of March, 1959. Persuant thereto a demand was raised and when this was served on one of the erstwhile partners of the assessee firm, he filed an appeal and prayed for the condonation of delay on the ground that no notice under Section 21 of the Act had been served. The assessment under Section 21 of the Ac was challenged on the ground that no notice under Section 21 was served and even if it was served it was not a proper and valid service within the meaning of rule 77 of the Sales Tax Rules. The assessment under Section 21 of the Ac was challenged on the ground that no notice under Section 21 was served and even if it was served it was not a proper and valid service within the meaning of rule 77 of the Sales Tax Rules. The Judge (Appeals) rejected this contention notwithstanding his finding that the notice under Section 21 of the Act was not on the record and there was no mention of it in the order sheet- He brushed aside these defects by observing: "This only shows that the order sheet was not completely maintained, but so far as the service of notice is concerned, it cannot be denied in view of the process server's register." In other words, he relied entirely on the process server's register without making any attempt to make it a part of the record of these proceedings. He, therefore, held that there had been proper and valid service by affixation, but, on merits, as the assessment of tax was large, he remanded the case to the Sales Tax Officer for fresh assessment after giving the assessee an adequate opportunity to produce the account books and other documentary evidence in support of its case. Aggrieved, the assessee went up in revision. The judge (Revisions) in view of the unsatisfactory state of record, was not able to give wholly consistent findings of fact. He correctly appreciated and observed that Section 21 of the Act was the very basis of the assessment under Section 21 and, therefore, it was necessary to establish that the condition precedent for taking action under Section 21 which was the issue of a valid notice, was complied with. He, however, fell into the error of thinking that the issue of a notice was different from the service of notice. He also fell into the error of relying upon the register of the process server which had not been made a part of the record was proving that some notice was issued. In the absence of the notice under Section 21 on the record he also looked at the entries in the order sheet. As regards the latter he observed: "Strangely enough, the order sheet is silent on the point. In the absence of the notice under Section 21 on the record he also looked at the entries in the order sheet. As regards the latter he observed: "Strangely enough, the order sheet is silent on the point. Though the case was fixed for hearing on 19-3-1959, there is no entry of any order on that date." He then looked at the register of the process server, without making it a part of the record, and from that he concluded that some kind of notice was issued. That, according to him, was neither here nor there, as the entry in the process server's register did not go beyond showing that some notice was issued and served by affixation. It did not show the circumstances under which the affixation which is the last of the modes under rule 77 of the Rules, was restored to. In this connection he observed that "there is nothing on the record to show that that was done." Then he went on to observe: "In the absence of the original notice it could not be held that the notice was refused. Even otherwise it could not be held that it was refused." In other words, the finding of fact given was that the notice under Section 21 was never refused by the assessee, and, therefore. there could have been no question of serving the notice by affixation. He further went on to record: "The affixation too at that address was meaningless." Ac-cording to the Judge (Revisions) "the result, therefore, is that the notice issued under Section 21 in this case could not be held to have been sufficiently served in a legal manner. As such, the assessment order passed in this case cannot be allowed to stand." So far so good. If the assessment order cannot be allowed to stand and the notice issued under Section 21 of the Act was not properly or legally served then that should have been the end of the matter. The Judge (Revisions), however, fell into the error of holding that so long as the notice is issued within four years, whether it is validly served or not, it is full compliance with the provisions of Section 21 of the Act. According such a notice was issued within the period of four years of the expiry of the assessment year. That requirement was complied with in this case. According such a notice was issued within the period of four years of the expiry of the assessment year. That requirement was complied with in this case. That means that there was no legal defect". He then goes on to hold: "But there was irregularity in the procedure adopted in serving the notice. That being so, it is a proper case for remand. The learned Judge (Appeals) has already passed such an order. That order must, therefore, be confirmed." Hence, this reference at the instance of the assessee. 3. At the outset, it must be observed that the questions are not happily framed and the only question that really arose was the one suggested by the assessee at the time when a reference was asked for," as to whether the service of notice under Section 21 is mandatory before assessment under Section 21 can be made and if a notice has not been served the assessment under Section 21 is valid?" The position under the corresponding section of the Income Tax Act is well settled after the decision of the Supreme Court on the point. In Tax Officers, it was held that the notice prescribed by Section 34 of the Income Tax Act for the purpose of initiating re-assessment proceedings is not a mere procedural requirement; the service of the prescribed notice on the assessee is a condition precedent to the validity of any re-assessment made under Section 34 of the Act. If no notice is issued or if the notice issued is shown to be invalid then proceedings taken by the Income Tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. 4. In Banarasi Dass v. Income Tax Officer, (1959) 35 I.T.R. 388 , the Supreme Court endorsed the view taken by Various High Courts that the word "issue" in Section 34 (1) of the Income Tax Act was equivalent to the expression "served". 5. In Devi Shanker Bhatt v. J.P. Jani, Income Tax Officer, (1965) 58 I.T.R. 559 , relying upon Banarasi Dass case, it was held that the words "issue" and "served" are used in Section 34 (I) of the Act not indicating two different stages but as interchangeable terms, the term "issue" being used in the same sense as "served." 6. 5. In Devi Shanker Bhatt v. J.P. Jani, Income Tax Officer, (1965) 58 I.T.R. 559 , relying upon Banarasi Dass case, it was held that the words "issue" and "served" are used in Section 34 (I) of the Act not indicating two different stages but as interchangeable terms, the term "issue" being used in the same sense as "served." 6. The Punjab High Court also in Commissioner of Income Tax v. Jokhiram Balmukand, (1966) 60 I.T.R. 357 , similarly, held that the word "issued" in Section 34 (1) (b) of the Income Tax Act for re-assessment of escaped income means not only "issue" but also "service" on the assessee before the expiry of four years from the end of the year in which the income was first assessable. 7. Therefore, under the provisions of Section 34 of the Income Tax Act the word "issue of notice" must be equated with "service of notice" and unless there is valid and proper service, the whole proceedings taken pursuant thereto would be null and void. The only question that requires to be considered is whether the provisions of Section 21 of the U. P. Sales Tax Act are in pars materia or similar to Section 31 of the Income Tax Act. On that point a Division Bench of this court, in an unreported decision, in M/S Banwari Lal Madan Mohan v. Judge, (Revisions) Civil Misc. Writ No. 1966 of 1962 decided on 31st January, 1964, has taken the view that "both Section 34 of the Income Tax Act and Section 21 of the U. P. Sales Tax Act relate to re-assessment. Both the process involve amendment of an initial assessment. Under Section 34, Income Tax Act, the Income Tax Officer entertains a belief that the assessee's income escaped assessment to tax. Acting on that belief, he issues a notice to the assessee. Thereafter, the Income Tax Officer proceeds to make a re-assessment of income-tax. Similarly under Section 21 of the U. P. Sales Tax Act, the Sales Tax Officer entertains a belief that the turnover of a dealer has escaped assessment to tax. Acting under that belief, the Sales Tax Officer issues a notice to the dealer. Thereafter, the Sales Tax Officer proceeds to re-assess the dealer to sales tax. It will be seen that the two processes involve the same plan-belief, notice and re-assessment. Acting under that belief, the Sales Tax Officer issues a notice to the dealer. Thereafter, the Sales Tax Officer proceeds to re-assess the dealer to sales tax. It will be seen that the two processes involve the same plan-belief, notice and re-assessment. So, the principle underlying Section 34, Income Tax Act that notice is a jurisdictional step governs Section 21, U. P. Sales Tax Act also." In this decision, some earlier observations to the contrary made by Desai, C. J. in Sales Tax Reference No. 36 of 1960 decided on 30th April, 1963 were held to be only obiter dicta. We respectfully, agree with the view taken in Writ Petition No. 1966 of 1962. 8. For the reasons given above, we would reframe and consolidate questions Nos. 1 and 2 as: "Whether the service of a notice under Section 21 of the Act is mandatory and if no notice has been served as required by rule 77 of the Sales Tax Rules, the assessment under Section 21 is invalid? 9. The question as refrained is answered in the affirmative and in favour of the assessee. In this view of the matter question No. 3 does not arise. The reference is answered accordingly. The Department will pay the costs of this refer which we assess at Rs. 100/-.