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2008 DIGILAW 1791 (ALL)

SACHIN AND NITIN ENTERPRISES v. STATE OF U. P.

2008-08-26

B.K.NARAYANA, U.K.DHAON

body2008
JUDGMENT Heard Shri Bharatji Agarwal, learned Senior Advocate assisted by Shri S. M. K. Chaudhary for the petitioner and Shri H. P. Srivastava, the learned Additional Chief Standing Counsel for the respondents. The petitioner being aggrieved by the notice dated July 23, 2008 issued by the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad, for the assessment years 2003-04 and 2004-05 has filed the present writ petition. The brief facts of the case are that the petitioner is a registered dealer under the provisions of the U.P. Trade Tax Act, 1948 as well as the Central Sales Tax Act, 1956. On the basis of an agreement with the ex-U.P. principal, the petitioner has purchased mentha oil on behalf of the ex-U.P. principal, and thereafter the goods were dispatched to the ex-U.P. principal. The petitioner has alleged that for the assessment years 2003-04 and 2004-05 after making detailed enquiry during the assessment proceedings the assessment orders were passed on February 8, 2006 and March 29, 2007. Against the said assessment orders dated February 8, 2006 and March 29, 2007, no appeal as provided under section 9 of the U.P. Trade Tax Act (hereinafter referred to as, "the Act") was filed by the petitioner. The Joint Commissioner (Executive), Commercial Taxes, Lucknow Range A, Lucknow, under whose jurisdiction the Barabanki Circle, at the relevant time was lying issued a notice dated June 17, 2008 under the provisions of section 10B of the Act to the petitioner who was directed to appear before the authority concerned on July 4, 2008 and on the request of the petitioner the case was adjourned for July 18, 2008. The learned counsel for the petitioner submits that in a most arbitrary and illegal manner another notice dated July 23, 2008 has been issued by the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad for the assessment years 2003-04 and 2004-05, which is identical to the earlier notice dated June 17, 2008 issued by the Joint Commissioner (Executive), Commercial Taxes, Lucknow Rang A, Lucknow. He further submits that the entire proceedings in pursuance of the notice dated July 23, 2008 are illegal and void. He further submits that the entire proceedings in pursuance of the notice dated July 23, 2008 are illegal and void. Shri H. P. Srivastava, the learned Additional Chief Standing Counsel appearing for the respondents submits that on July 4, 2008 the jurisdiction of Barabanki Circle was transferred from the Joint Commissioner (Executive), Commercial Taxes, Lucknow Range A, Lucknow, to the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad and by subsequent notification dated July 7, 2008 the jurisdiction of Range B Faizabad was given to the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range A, Faizabad as the said post was vacant. He further submits that there is no illegality in the notice issued on July 23, 2008 by the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad. He further submits that the entire record on the basis of which the earlier notice dated June 17, 2008 was issued by the Joint Commissioner (Executive), Commercial Taxes, Lucknow Range A, Lucknow, was transferred to the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad. He further submits that the subsequent notice dated July 23, 2008 is only an intimation to the petitioner who has already submitted reply to the said notice before the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad, on July 31, 2008. We have considered the submissions made by the learned counsel for the parties and gone through the record. It is admitted case of the parties that the assessment orders in respect of the assessment years 2003-04 and 2004-05 were passed by the assessing authority on February 8, 2006 and March 29, 2007. It is also admitted case of the parties that no appeal under section 9 of the Act was preferred by the petitioner before the appellate authority. In the short counter-affidavit filed by the respondents, it has been stated that by the notification dated July 4, 2008 the jurisdiction of Barabanki Circle was transferred from the Joint Commissioner (Executive), Commercial Taxes, Lucknow Range A, Lucknow to the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad and by another notification dated July 7, 2008 the jurisdiction of Range B, Faizabad was given to the Joint Commissioner (Executive), Range A, Faizabad. The impugned notice dated July 23, 2008 has been issued to the petitioner by the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad, under the provisions of section 10B of the Act in respect of the assessment years 2003-04 and 2004-05. The notices for the assessment years 2003-04 and 2004-05 were already issued on June 17, 2008 by the Joint Commissioner (Executive), Commercial Taxes, Lucknow Range A, Lucknow. Once the jurisdiction of Barabanki Circle was transferred from the Joint Commissioner (Executive), Lucknow Range A, Lucknow to the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad and thereafter by the notification dated July 7, 2008 the jurisdiction of Range B, Faizabad was given to the Joint Commissioner (Executive), Faizabad Range A, Faizabad, the Joint Commissioner (Executive), Commercial Taxes, Range B, Faizabad was having no jurisdiction to issue the notice dated July 23, 2008. It is also relevant to mention here that the notices issued on July 23, 2008 are similar to the notices issued on June 17, 2008. We are of the view that after notification dated July 4, 2008 when the jurisdiction of Barabanki Circle was transferred from the Joint Commissioner (Executive), Commercial Taxes, Lucknow Range A, Lucknow to the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad and thereafter by the notification dated July 7, 2008 the jurisdiction of Range B, Faizabad was given to the Joint Commissioner (Executive) Faizabad Range A, Faizabad, the Joint Commissioner (Executive), Commercial Taxes, Faizabad Range B, Faizabad was having no jurisdiction to issue notice under section 10B of the Act on July 23, 2008. The notices issued on July 23, 2008 for the assessment years 2003-04 and 2004-05 are legally not sustainable. In the result, the writ petition succeeds and is hereby partly allowed. The impugned notices dated July 23, 2008, the copies of which have been annexed as annexure 4 to the writ petition, are hereby quashed. It will be open for the respondent No. 3 to proceed on the basis of the earlier notices dated June 17, 2008. The petitioner shall be entitled to file objection against the notices dated June 17, 2008 issued by the Joint Commissioner (Executive), Commercial Taxes, Lucknow Range A, Lucknow within two weeks. Respondent No. 3 shall consider and decide the matter in accordance with law.