JUDGMENT Hon’ble Bharati Sapru, J.—Heard learned counsel for the assessee Shri K. Saxena and Shri K.M. Sahai, learned counsel for the State. 2. This revision has been filed by the assessee for the assessment year 1982-83 against the order of the Tribunal dated 29.1.2001. 3. The question of law referred to are as given hereunder : (1) Whether on the facts and circumstances of the case, the Tribunal was justified in passing an ex-parte order? (2) Whether, on the facts and circumstances of the case, the initiation of proceedings under Section 21 of the U.P. Trade Tax Act was justified? (3) Whether on the facts and circumstances of the case, the Tribunal was justified in believing that the applicant had imported coal pursuant to the allotment order and sold the same even though there was no material on record to believe so? (4) Whether on the facts and circumstances of the case, the estimate of the turnover in respect of sale of coal was justified? 4. The facts of the case are that the revisionist was carrying on the business of purchase and sale of coal. In the year 1982-83 the assessee applied to the District Supply Officer, Ballia for allotment of coal. He was allotted 3625 M.T. of coal from outside U.P. It is stated by the revisionist that he was under financial stress and was also suffering from illness and, therefore, did not make any purchase and sales during the year 1982-83. When assessment proceedings were undertaken for the year 1982-83 the assessee claimed that he had done no business and the assessing officer, after making due enquiries declared the assessee, as non-taxable by passing an order dated 24.12.1986. 5. Subsequently, proceedings were initiated under Section 21 of the U.P. Trade Tax Act, on the basis of the information received by the authorities that the assessee had been allotted 3625 M.T. of coal for import and an order was passed on 7.3.1988 by which his turn-over was estimated at Rs. 14,50,000/- and he was subjected to a tax of Rs. 58,000/-. 6. 14,50,000/- and he was subjected to a tax of Rs. 58,000/-. 6. Aggrieved by this order, the assessee filed an appeal under Section 9 and at the time of hearing of the aforesaid appeal, he filed an affidavit wherein he stated that he had not utilized the coal that was alloted to him in the year 1982-83 and in fact, he had shut down his business and no sales and purchases were made by him in the said year. The first appeal of the assessee was, however, dismissed by order or judgment dated 1.3.90. The assessee, thereafter, filed a second appeal under Section 10 of the Trade Tax Act and the Second Appeal was disposed of ex-parte against the assessee by an order dated 29.6.99. The assessee, thereafter, approached this Hon’ble Court with a prayer that his appeal be decided on merits, which was granted and, thereafter, the appeal of the assessee was heard on merits and has been decided against the assessee by an order dated 29.1.01. The Tribunal, by the impugned order, has come to the conclusion that the proceedings under Section 21 was justified and the assessee has been rightly reassessed under the said provisions. 7. The relevant portion of Section 21 is quoted herein below : “21. Assessment of tax on the turnover not assessed during the year. (1) If the Assessing Authority has reason to believe that the whole or any part of the turnover of a dealer, from any assessment year or part thereof, had escaped assessment to tax or has been under-assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions has been wrongly allowed in respect thereof, the Assessing Authority may, after issuing notice to the dealer and making such inquiry, as it may consider necessary assess or re-assess the dealer to tax according to law :....” 8. Learned counsel for the assessee has vehemently argued that the proceedings under Section 21 of the U.P. Trade Tax Act were wrongly initiated against the assessee on account of the fact that the proceedings were initiated without there being any basis or reason to believe that any income had escaped assessment. But rather, it was only on the basis of information and that by itself was not sufficient to invoke the provisions of Section 21 of the Act. But rather, it was only on the basis of information and that by itself was not sufficient to invoke the provisions of Section 21 of the Act. 9. Learned counsel has argued that there was absolutely no evidence on record to show that any turn-over has escaped the assessment to tax and, therefore, the proceedings under Section 21 were invalid. 10. Learned counsel has further argued that the Tribunal has wrongly come to the conclusion that the assessee failed to discharge the burden to show that after the allotment of coal had been made in his favour he had not utilized the said allotment order and that it was incumbent upon the assessee to have filed before the assessing authority a certificate obtained from the District Supply Officer to show that he had actually made any sales and purchases against the allotment order. 11. Learned counsel for the assessee has argued that in fact the assessee had filed before the First Appellate Authority an affidavit in which he categorically stated that he had not utilized the allotment order and had not made any import of coal against the said allotment order. Learned counsel has argued that the assessee also made a categorical statement that the business of the assessee had come to a close. He further argued that this affidavit filed by the assessee was not controverted by the State and once this affidavit was accepted by the revenue, it was not open to the revenue to expect the assessee to discharge the negative burden of proof or to compel the assessee to file a certificate obtained from the District Supply Officer that he had not made any utilization of the allotment order. 12. Learned counsel for the assessee has argued that the Tribunal has committed a manifest error of law in upholding the assessment order made under Section 21 and the conclusion drawn by the Tribunal are wholly based on presumptions and the information was not substantiated by any cogent evidence or proof by the Department, especially in view of the fact that once the assessee had filed the affidavit stating that he had not utilized the allotment order, the burden had shifted upon the Department and it was for the department to discharge the burden positively that the allotment order had been used. The insistence of the department that the assessee ought to have discharged the burden of proof negatively was clearly arbitrary and illegal. 13. Learned counsel has also argued that the Tribunal overlooked the circumstances that although the applicant was a registered dealer, it had not received any Form-C or Form-31 for import of coal, without which it could not have done so. In the absence of there being any evidence with regard to such essential forms, the presumption drawn by the revenue was also wholly mistaken and illegal. 14. In support of his contentions, learned counsel for the assessee has relied upon on a decision of this Court in the case of M/s. Vishnu Dutt Sharma v. Commissioner of Sales Tax, 1990 UPTC 689, wherein this Court has held that before initiation of proceedings under Section 21, the assessing authority should have reason to believe that on the basis of the material available on the record, issuance of notice under Section 21 is warranted. Mere information would not be sufficient to justify the issuance of a notice under Section 21. The authority should record the finding on the basis of the material available on the record and the burden always remains on the Revenue to prove that any turnover has escaped the assessment and the burden never shifts on the assessee. It was further held that in that particular case as no From-C or Form-31 were ever issued to the assessee, in the particular assessing year, then also it would be proved that no imports had been used. Ultimately, the Court recorded the mere fact that some allotments of coal made by the department would not necessarily led to the conclusion that coal was purchased by the assessee in pursuance of the allotment order issued in his favour. 15. Learned counsel has also relied on another decision of this Court in the case of M/s. Amir Ahmad and Sons v. Commissioner of Sales Tax, 1992 UPTC 376. In this case the facts were that a dealer had obtained an import licence for brass wares but it has not utilized it. The Department, upon proceedings under Section 21 assuming that the dealer must have imported the goods against the licence and, therefore, turn-over had escaped the assessment. The above contentions as raised by the learned counsel for the revisionist have substance and are accepted by this Court. 16. The Department, upon proceedings under Section 21 assuming that the dealer must have imported the goods against the licence and, therefore, turn-over had escaped the assessment. The above contentions as raised by the learned counsel for the revisionist have substance and are accepted by this Court. 16. The Court, while examining the matter, took into consideration the fact that the dealer had filed an affidavit stating that no import was made against the import licence but had not obtained any certificate from the relevant authorities to show that the licence had not been utilized. The Court, while examining the matter, held that when the particulars of the import licence were known to the Department, then, it could have made necessary investigation from the concerned authorities whether or not the import licence was utilized by the dealer and also no evidence having been given by the Department to prove that the dealer had utilized the licence. The Court held that the Department was not justified in having assumed the fact that the dealer had actually made imports against the said import licence and had escaped assessment. The Court held that “it is trite that negative fact cannot be proved once the dealer stated on affidavit that no import was made against the aforesaid import licence, the onus was shifted to the respondent to controvert the negative contention of the dealer by cogent evidence that the import licence was utilized and in fact the import was made against that.” The Court, therefore, came to the conclusion that it was not justified on the part of the department to assume that in fact, import had been made against the said licence and, therefore, the proceedings initiated under Section 21 was set at naught by this Court. 17. Learned Standing Counsel Shri K.M. Sahai has very strenuously argued the matter and has drawn attention of this Court to the provisions of Section 12-A of the U.P. Trade Tax Act and has referred to a decision of this Court in the case of M/s. Tirugi Narayan Pandey v. Commissioner of Sales Tax, 2001 U.P.T.C. 72 in which the Court has held that when there are facts, which are within the knowledge of the assessee, then the burden lies on the assessee to discharge the said burden. 18. I have heard learned counsel for both the sides at length and also perused the materials on record. 18. I have heard learned counsel for both the sides at length and also perused the materials on record. 19. In the facts and circumstances of the case, it is clear that an assessment order had been passed by the assessing authority declaring the assessee as non-taxable for the assessment year 1982-83. 20. The proceedings were re-opened and initiated under Section 21 of the U.P. Trade Tax Act on the basis of the information received by the Department that the assessee had been allotted a certain amount of coal from the Department. The record reflects other than the fact that information was received by the Department that coal had been allotted, there was no other evidence to show that the department had recorded any reason to believe that the assessee had utilized the order of allotment or had made any sales and purchases or any imports against the said allotment order. 21. Therefore, the very first ingredient of provisions of Section 21 were not attracted in this case. Secondly, during the course of the first appeal, the assessee filed an affidavit, categorically stating that he had not utilized the allotment order for import and he had closed his business. This affidavit was not controverted or doubted by the Department at any stage. Thirdly, once the assessee had discharged the burden placed on him to show that he had not utilized the import allotment or the burden shifted on the Department to produce any such evidence that it may have, after due investigation, especially in view of the fact that the department had also within its knowledge that there was an import allotment order. The record does not reflect that the department made any effort to investigate about the said matter but simply initiated the proceedings on the basis of the information received. 22. Thus, I am of the considered opinion that the proceedings initiated under Section 21 of the Act were wholly illegal and are liable to be set aside by this Court. 23. In so far as the decision relied upon by the learned Standing Counsel is concerned, the decision was taken with regard to regular proceedings are not proceedings initiated under Section 21 of the Act and considerations in proceedings under Section 21 of the Act first had to confirm to the provisions of that section itself, which was not done in this matter. The entire proceedings under Section 21 of the Act failed to disclose the reason to believe why the proceedings under Section 21 were initiated at all. The order passed by the Tribunal is vitiated on account of this. The order of the Tribunal is hereby set aside. 24. The revision is allowed. ————