The petitioner - a Co-Operative Society - registered under the U. P. and Central Sales Tax Act, inter alia, seeks quashing of the impugned notice dated November 2, 1991, issued under section 21 for the assessment year 1979-80 under the U. P. Sales Tax Act, 1948 (annexure 6 to the writ petition ). 2. The facts, in brief, are that the Sales Tax Officer passed an assessment order for the assessment year 1978-79 which according to the petitioner was ex parte, on November 21, 1983. When an application under section 30 for setting aside the same was dismissed, the petitioner filed an appeal before the Assistant Commissioner (Judicial) who allowed the appeal and remanded the case to the assessing authority for passing an order afresh giving an opportunity of being heard to the petitioner. Pursuant to the remand order, the assessing authority by an order dated August 21, 1989, passed under section 9 (2) of the Central Sales Tax Act, 1956 determined the total turnover of staple fiber as well as cotton yarn sold against from "c" and without "c" at Rs. 47,31,460 and imposed Central sales tax at Rs. 3,32,629 (see annexure I) which was challenged in appeal by the petitioner. The Assistant Commissioner (Judicial) by his order dated January 9, 1990 partly allowed the appeal and granted the relief to the extent of Rs. 2,86,000 by deleting the turnover of staple fiber which was assessed by the Sales Tax Officer at the rate of 10 per cent (see annexure 2 ). 3. The Assistant Commissioner (Judicial) while deciding the appeal observed in the body of the judgment that the petitioner had obtained these goods during the period from June 9, 1979 to June 15, 1979 and these goods form part of the closing stock as on June 30, 1978. The Assistant Commissioner (Judicial) further held that such stock could have been sold having obtained the permission of the Textile Commissioner which was obtained only on September 12, 1979. The appellate authority, therefore, held that the goods had been transferred by way of stock transfer after having obtained the permission from the Textile Commissioner during the assessment year 1979-80. The Assistant Commissioner (Judicial) further held that such stock could have been sold having obtained the permission of the Textile Commissioner which was obtained only on September 12, 1979. The appellate authority, therefore, held that the goods had been transferred by way of stock transfer after having obtained the permission from the Textile Commissioner during the assessment year 1979-80. Having so found, the Assistant Commissioner (Judicial) made an observation that the Sales Tax Officer, if he so desires, could take the proceedings under section 21 (7) of the U. P. Sales Tax Act (now the Trade Tax Act) (hereinafter referred to as "the Act" ). 4. Fortified by the order of the Assistant Commissioner (Judicial), the Sales Tax Officer issued a notice under section 21 (7) for the assessment year 1979-80 on January 23, 1991 to the petitioner (see annexure 3 ). 5. The petitioner then filed a reply stating that the assessment proceedings for the assessment year 1979-80 had become barred by time and no turnover for that year escaped assessment to tax. It was also stated that section 21 (7) is not applicable on the facts and circumstances of the case. Without paying any heed to such objection of the petitioner, the assessing authority issued a notice calling upon the petitioner to file a reply on the merits as to why Central sales tax be not levied for the assessment year 1979-80 on the stock transfer of the goods. The petitioner reiterated that proceedings under section 21 (7) of the Act were barred by limitation. 6. The assessing authority, however, stuck to the notice issued under section 21 (7) and, therefore, the petitioner filed this writ petition praying : (i) that section 21 (7) of the Act be declared invalid and that impugned notice issued under section 21 (7) - annexure 6 to the writ petition for the assessment year 1979-80, being barred by limitation be quashed. In the counter-affidavit filed for the respondent, it is denied that the proceedings under section 21 (7) are barred by limitation. 7. In the counter-affidavit filed for the respondent, it is denied that the proceedings under section 21 (7) are barred by limitation. 7. Shri Bharat Ji Agrawal, learned counsel for the petitioner, vehemently relying on the case of S. C. Prashar v. Vasantsen Dwarkadas [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 urged that section 21 (7) of the Act on the analogy of the second proviso to sub-section (3) of section 34 of the Income-Tax Act, 1922 (for short, "the Act of 1922") is invalid and void being violative of article 14 of the Constitution inasmuch as that creates a hostile discrimination between two classes of the dealers : (i) the dealers whose cases fell under sub-section (1) of section 21 of the Act who can be assessed of reassessed only within a period of 4 years from the end of the year turnover of which escaped assessment within the meaning of sub-section (2) of section 21 and (ii) the dealers who are to be assessed or reassessed under sub-section (7) of section 21 the Act pursuant to the direction of any superior authority or court legally empowered to issue such directions. The contention of Shri Bharat Ji Agrawal, in short, is that there is no basic difference in such two types of dealers, as in essence in the case of each such dealer turnover has escaped assessment and thus dealers belonging to both the classes are liable to be assessed or reassessed under section 21. It is submitted that whereas section 21 (7), imposes no limitation to make assessment or reassessment for the turnover which escaped assessment and which is to be assessed pursuant to a direction of a superior authority or court, section 21 (2) does not permit any assessment being made after the expiry of 4 years from the end of the year of which turnover has escaped assessment. Shri Bharat Ji Agrawal says that the mere fact that under section 21 (7) a dealer is subjected to assessment or reassessment pursuant to a direction of a superior authority or court, does not create intelligible differentia to discriminate such class of dealers from the other class of dealers in whose cases escaped turnover is brought to assessment without a direction of a superior authority or court, but merely upon the discovery of the fact that some turnover has escaped assessment. The common feature in the case of the both the classes of dealers, says Shri Bharat Ji Agrawal, is that the fact is discovered that some turnover escaped assessment and, therefore, a dealer falling under each class is liable to be assessed or reassessed. If that is so, argues Shri Bharat Ji Agrawal both the classes of dealers deserve equal treatment and it is unconstitutional to provide limitation for one class of dealers falling under sub-section (1) of section 21 and providing no limitation for those who fall under sub-section (1) of section 21 and, therefore, section 21 (7) is invalid and void being violative of article 14 of the Constitution. 8. To buttress his submission, Shri Bharat Ji Agrawal relied on the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 . We have carefully gone through this authority which is the sheet anchor of the case of the petitioner. In S. C. Prashars case [1963] ITR 1 (SC); AIR 1963 SC 1356 , validity of the second proviso to sub-section (3) of section 34 of the Act of 1922 came to be challenged, which runs as follows : " Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment may be shall apply to a reassessment made under section 27 or to an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33a, section 33b, section 66 or section 66a. " 9. The provisions of sub-section 21 (7) of the Act are, no doubt, in pari materia with the provisions of the second proviso to section 34 (3) of the Act of 1922, as both referred to the assessment or reassessment made on the assessee or any person in consequence of directions of a superior authority or court and as both the provisions do not provide any limitation. If the contention of Shri Bharat Ji Agrawal that the second proviso to section 34 (3) was declared unconstitutional being violative of article 14 of the Constitution qua assesses and third parties in the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 , is found to be correct, then it his submissions will have to be accepted for the purpose of section 21 (7) being in pari material with the proviso to section 34 (3 ). 10. To appreciate the submissions of Shri Bharat Ji Agrawal, it will be apposite to rush up through the facts of the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 . The facts are that Dwarkadas Vussonji and Premanand Odhavji carried on business in partnership in the name and style of Purshottam Laxmidas from October 28, 1935 till April 1, 1946, when Dwarkadas, Vussonji died. Thereafter, Vasantsen Dwarkadas, son of Dwarkadas Vussonji and Premanand Odhavji, respondent No. 3 continued the business under the same name. On January 28, 1941 another firm under the name of Vasantsen Dwarkadas was started; its partners were Vasantsen Dwarkadas, Narayandas Shivji and Nanalal Odhavji. The firm was dissolved of October, 24, 1946. For the assessment year 1942-43, the firm Vasantsen Dwarkadas filed a voluntary return of income and also applied for registration under section 26 of the Act of 1922. The registration was refused in the ground that the firm was not a genuine firm but really belonged to Dwarkadas Vussonji, the principle partner of the firm Purshottam Laxmidas. The Income-tax Officer added the income of the firm Vasantsen Dwarkadas for the assessment year 1942-43 to the individual income of Dwarkadas Vussonji in the subsequent year 1943-44. Appeals were taken to the Income-Tax Appellate Tribunal by the Vasantsen Dwarkadas both against the quantum of its assessed income and against the refusal of registration for the assessment years 1942-43 to 1948-49. The appeals filed by the firm Vasantsen Dwarkadas and the appeal filed by Vasantsen Dwarkadas representing the estate of his father Dwarkadas Vussonji and the appeals filed by the firm Purshottam Laxmidas in regard to the excess profits tax were all heard together and decided by the Income-tax Appellate Tribunal by its order made on August 14, 1951. The appeals filed by the firm Vasantsen Dwarkadas and the appeal filed by Vasantsen Dwarkadas representing the estate of his father Dwarkadas Vussonji and the appeals filed by the firm Purshottam Laxmidas in regard to the excess profits tax were all heard together and decided by the Income-tax Appellate Tribunal by its order made on August 14, 1951. By the said order the Appellate Tribunal gave a finding that Dwarkadas Vussonji was not the sole proprietor of the business of the firm Vasantsen Dwarkadas but that the business of the said firm belonged to the firm Purshottam Laxmidas. 11. Getting a clue from the order of the Income-tax Appellate Tribunal dated August 14, 1951, the Income-tax Officer issued a notice on April 30, 1954 to the firm Purshottam Laxmidas under section 34 of the Act stating that its income for the year ending 31st March, 1943 has been under-assessed which he propose to reassess. 12. The validity of such notice was challenged before the Bombay High Court S. T. Desai, J. , who heard the petition filed under article 226 of the Constitution, inter alia, held that there was intelligible differential between an assessee and a stranger and they form separate class. The learned Judge was of the view that an assessee cannot successfully challenge the validity of the notice issued under section 34 on the ground that the provisions as contained in the second proviso to section 34 (3) are violative of article 14 of the Constitution but there was no rational distinction so far as strangers are concerned and that there was no reason why the strangers are concerned and that there was no reason why the strangers should be deprived of the benefit of limitation as prescribed by sub-section (1) of section 34. The learned Judge took the view that so far as assessees are concerned there might be a rational ground for distinction because the appeal proceedings, etc. , may take a long time and the assessee being a party to the appeal could not complain of such delay and, therefore, assessees did not occupy the same position as strangers. The appeal court confirmed the decision of S. T. Desai, J. 13. Aggrieved, the revenue appealed to the Supreme Court. , may take a long time and the assessee being a party to the appeal could not complain of such delay and, therefore, assessees did not occupy the same position as strangers. The appeal court confirmed the decision of S. T. Desai, J. 13. Aggrieved, the revenue appealed to the Supreme Court. Heading the Constitution Bench, His Lordship S. K. Das, J. , dilating on the constitutionality of the second proviso to section 34 (3) concluded, in paragraph 12 at page 1362, as follows : (Prashar v. Vasantsen Dwarkadas [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 ) : " Now, I proceed to discuss the first question as to whether this proviso applies in the present case. The question has two facets : (1) whether the proviso is constitutionally valid and (2) if it is constitutionally valid, does it apply to a case where the time-limit fixed by sub-section (1) of section 34 had expired some time before April, 1, 1952, the date on which the proviso came into effect ? with regard to the first facet, Chagla, C. J. , has pointed out, rightly in my opinion, that the persons with regard to whom a finding or direction is given and persons with regard to whom no finding of direction is given belong really to the same category, namely, the category of persons who are liable to pay tax and have failed to pay it for one reason or another. Admittedly, persons who are liable to pay tax and have not paid it could not be proceeded against after the period of limitation, unless a finding or direction with regard to them was given by some Tribunal under various sections mentioned in the proviso; therefore out of the large category of people who were liable to pay tax but failed to pay it, a certain number is selected for action by the proviso and with regard to that small number the right of limitation given to them is taken away. The real question is, is there any rational basis for distinguishing between persons who are liable to pay and have failed to pay it and with regard to whom no finding or direction is given. The real question is, is there any rational basis for distinguishing between persons who are liable to pay and have failed to pay it and with regard to whom no finding or direction is given. I am in agreement with the view expressed by the learned Chief Justice that no rational basis has been made out for the distinction between the two classes of people referred to above, who really fall in the same category and with regard to whom there was no difficulty in having uniform provision of law. I am further in agreement with the view of the learned Chief Justice that the principle laid down by this Court in Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri [1955] 1 SCR 448; 1954 SC 545 applies. In that case sub-section (4) of section 5 of the Taxation on Income (Investigation Commission) Act, was challenged and this Court pointed out that there was nothing uncommon either in properties or in characteristics between persons who were discovered as evaders of income-tax during an investigation conducted under section 5 (1) and those who were discovered by the Income-tax Officer to have evaded payment of income-tax. Both these kinds of persons really belonged to the same category and therefore required equal treatment. This Court pointed out that section 34 of the Indian Income-tax Act and sub-section (4) of section 5 of the impugned Act dealt with persons who had similar characteristics and properties and therefore a different treatment of some out of the same class offended the equal protection clause embodied in article 14 of the Constitution. It seems to me that the position is the same here. Whether persons who evade tax are discovered by means of a finding given by a Tribunal or they are discovered by any other method, they really belong to the same category and therefore require equal treatment. The second proviso to sub-section (3) of section 34 which came into effect from April 1, 1952 patently introduced and unequal treatment in respect of some out of the same class of persons. Those whose liability to pay tax was discovered by one method could be proceeded against at any time and no limitation would apply in their case, and in the case of others the limitation laid down by sub-section (1) of section 34 would apply. Those whose liability to pay tax was discovered by one method could be proceeded against at any time and no limitation would apply in their case, and in the case of others the limitation laid down by sub-section (1) of section 34 would apply. This in my opinion is unequal treatment which is not based on any rational ground. " 14. Disagreeing with the proposition propounded by S. T. Desai, J. , that the assessees and the strangers form two different classes and that whereas the proviso to section 34 (3) is unconstitutional qua strangers, the same is valid qua assessees, His Lordship S. K. Das, J. , observed (in paragraph 12 at page 1363) as follows : " Desai, J. , put the matter on a somewhat narrower ground. He held that so far as assessees were concerned, there might be a rational ground for distinction because the appeal proceedings, etc. , might take a long time and the assessee being a party to the appeal could not complain of such delay; therefore, assessees did not occupy the same position as strangers. But the learned Judge held that there was no rational distinction so far as strangers were concerned and there was no reason why they should be deprived of the benefit of the time-limit prescribed by sub-section (1 ). He therefore held that the proviso, so far as it affected persons other than assessees not parties to the proceedings enumerated in it, must be held to be ultra vires the Legislature. " 15. From the above reproduced material, it is manifest that His Lordship S. K. Das, J. , held in unmistaken terms that the second proviso to section 34 (3) of the Act of 1922 is unconstitutional qua strangers as well as qua assessees. A dissenting view was taken by their Lordships M. Hidyatullah and Raghubar Dayal, JJ. , who held that the second proviso to section 34 (3) is not violative of article 14 of the Constitution. 16. Their Lordships J. L. Kapur and A. K. Sarkar, JJ. being party to the majority decision, delivered separate judgments. A dissenting view was taken by their Lordships M. Hidyatullah and Raghubar Dayal, JJ. , who held that the second proviso to section 34 (3) is not violative of article 14 of the Constitution. 16. Their Lordships J. L. Kapur and A. K. Sarkar, JJ. being party to the majority decision, delivered separate judgments. A conspectus reading of their Lordships separate judgments, it is manifest that they did not subscribe fully to the view taken by his Lordship S. K. Das, J. Dealing with the constitutionality of the second proviso to section 34 (3), His Lordship Kapur, J. , observed (in paragraph 54, at page 1375) as follows : " Appeals were filed for that year and subsequent years by the firm Vasantsen Dwarkadas both against the quantum of the assessed income and refusal of the Income-tax Officer to register the firm. These appeals and the excess profits tax appeal of firm Purshottam Laxmidas for the year 1942-43 were all consolidated and decided by the order of the Income-tax Appellate Tribunal dated August 14, 1951. At that stage Dwarkadas being dead Vasantsen Dwarkadas, respondent No. 1, was substituted in place of his after in the appeal of Purshottam Laxmidas. The order in the appeal of firm Vasantsen Dwarkadas against the firm Purshottam Laxmidas was not an order to which firm Purshottam Laxmidas as such was a party and consequently and finding given in regard to the income of the firm Vasantsen Dwarkadas being the income of the firm Purshottam Laxmidas was an order passed against a third party who was not heard in those proceedings. " 17. His Lordship Kapur, J. , then stated the contention of the respondent as follows : " It was contended on behalf of respondents that the second proviso to section 34 (3) is unconstitutional because it infringes article 14 of the Constitution in so far as it deprives such third party of the immunity given against assessment or reassessment by the period of eight years mentioned in section 34 (1) (a) and it results in prejudging the merits of the third partys case before he is even heard and that there is no reasonable basis for distinguishing such third party from any other person escaping income-tax. " 18. " 18. From the above reproduced contention of the respondents and from the fact matrix as stated hereinabove, it is patent that the Income-tax Officer held that the income of the firm Vasantsen Dwarkadas which was not genuine, belonged to Dwarkadas Vussonji, the father of respondent No. 1 who was the principal partner in the firm Purshottam Laxmidas. So the income of the firm Vasantsen Dwarkadas was added to the individual income of Dwarkadas Vussonji and he being the principal partner in the firm Purshottam Laxmidas, the contention was raised that the firm Purshottam Laxmidas, not being a party in the appeal, could not be deprived of limitation resorting to the second proviso to section 34 (3 ). Such contention was accepted by his Lordship Kapur, J. (in paragraph 52 at page 1377) in these words : " The submission of the respondents that there is no reasonable basis for classification between those who have escaped assessment under section 34 (1) (a) and those third parties who have escaped income-tax but with regard to whom a direction or an order is made under proviso (ii) to section 34 (3) is well-founded and therefore the provision is unconstitutional and hit by article 14. " 19. From the above finding, it is clear that in the opinion of His Lordship Kapur, J. , the second proviso to section 34 (3) was violative of article 14 of the Constitution qua third party and not qua assessee. It will be seen that the contention of the respondents before the Supreme Court was not that the second proviso to section 34 (3) is violative even against the assessees but the contention was limited only to the strangers and therefore, his Lordship Kapur, J. , while accepting the contention of the respondents, held that the second proviso to section 34 (3) is unconstitutional only as against the third parties, meaning thereby not against the assessees. 20. Turning to the judgment of His Lordship Sarkar, J. , it will suffice if paragraph 73 at page 1381, in which the entire finding on this question is embedded, is reproduced as under : " I may, before I conclude, as well say that for the reasons mentioned in the judgment in the case of Commissioner of Income-tax v. Sardar Lakhmir Singh C. As. Nos. Nos. 214 and 215 of 1958 : ( AIR 1963 SC 1394 infra) that I shall presently read today, I think that the second proviso to section 34 (3) of the Income-tax Act is invalid and cannot therefore support the notice. " 21. It is, therefore, necessary to advert to the case of Sardar Lakhmir Singh AIR 1963 SC 1394 in which judgment was also delivered on the same date. His Lordship Sarkar, J. , in the case of Sardar Lakhmir Singh AIR 1963 SC 1394 observed with perspicacity thus (in para 24 at pages 1398 and 1399) : " The question then aries, whether such other person can be put in a class as contrasted with other evaders of tax ? It is not suggested and it cannot be suggested, that there are no other evaders of tax except those who have been found to be such in proceedings under section 31 and the other sections mentioned in the second proviso. I find no intelligible differentia between a person who has been found in a section 31 proceeding to have evaded tax and other evaders of tax, which will have any rational relation to the object of the second proviso. It is true that there may have been some kind of evidence in the proceedings under section 31 which may have satisfied the Appellate Commissioner that a person not before him had evaded tax. But then it is possible for the revenue authorities to be satisfied on equally good evidence otherwise than in the course of proceedings mentioned in the second proviso, that a person has evaded tax. I see no distinction between such a person and the person mentioned in the proviso. But such a person has the advantage of the bar of time against an assessment order concerning him as provided in the substantive part of sub-section (3 ). This advantage is denied to the persons mentioned in the second proviso. It seems to me that the second proviso makes a hostile discrimination against persons mentioned in it and the classification made by it is without any intelligible differentia having a rational connection with the object of the statute. This advantage is denied to the persons mentioned in the second proviso. It seems to me that the second proviso makes a hostile discrimination against persons mentioned in it and the classification made by it is without any intelligible differentia having a rational connection with the object of the statute. I think therefore, that the second proviso to sub-section (3) of section 34, as amended by the Amending Act of 1953, in so far as it affects persons other than assessees is void as violating article 14 of the Constitution. " 22. From the meticulous perusal of the majority judgment in S. C. Prashar [1963] 49 ITR 1 (SC); AIR SC 1356, it follows that whereas His Lordship S. K. Das, J. , held in unqualifying manner that the second proviso to section 34 (3) is void being violative of article 14 of the Constitution. Their Lordships J. L. Kapur and A. K. Sarkar, JJ. , held that the second proviso to section 34 (3) of the Act of 1922 is unconstitutional only as against third parties or strangers but not against assessees. 23. Shri Bharat Ji Agrawal is, therefore, not correct in contending that the majority view in S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 is that the second proviso to section 34 (3) is unconstitutional being violative of article 14 of the Constitution qua assessees as well as strangers. This is the view taken only by His Lordship S. K. Das, J. , and not by their Lordships J. L. Kapur and A. K. Sarkar, JJ. 24. Reverting to the case in hand, the notice under section 21 (7) of the Act was, admittedly, given to the petitioner who was a party in the appeal before the Assistant Commissioner (Judicial), who observed that the assessing authority if he so desires can take proceedings under section 21 (7) of the Act against the petitioner for the assessment year 1979-80. The petitioner, therefore, cannot avail of the rule as stated in the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 . 25. We are, therefore, of the view that the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 is misplaced before us by Shri Bharat Ji Agrawal. 26. The petitioner, therefore, cannot avail of the rule as stated in the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 . 25. We are, therefore, of the view that the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 is misplaced before us by Shri Bharat Ji Agrawal. 26. Shri Rakesh Dwivedi, learned Additional Advocate-General appearing for respondents drew our attention to several decisions in support of his contention that the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 has been understood by the court in the court in the manner analysed by us. As we do not see any difficulty in interpreting and understanding the case of S. C. Prashar [1963] 49 ITR 1 (SC); AIR 1963 SC 1356 , we do not see it necessary to allude to all those judgments. 27. The petition, therefore, fails and is dismissed. The parties will bear their own costs. The interim order dated December 19, 1991; is discharged. Petition dismissed. .