JUDGMENT Hon’ble Shashi Kant Gupta, J.—This writ petition has been filed inter alia for the following reliefs : (a) Issue a writ, order or direction in the nature of Certiorari quashing notice No. 710 dated 25-7-2000 (Annexure-9), Notice Nos. 844 and 845 dated 4-8-2000 (Annexure-10 and 11) under Section 21 of the U.P.Trade Tax Act for the assessment year 1997-98 (U.P.) and 1997-98 (Central) issued by the Assistant Commissioner (Assessment)-II, Trade Tax, Rampur, respondent. (a1) Issue a writ, order or direction in the nature of certiorari quashing the notices dated 29-3-2000 issued by the respondent No.1 under Section 21 of the U.P.Trade Tax Act for the assessment year 1997-98 (U.P.) and 1997-98 (Central) (Annexures 12 and 13 respectively to the writ petition). (b) Issue a writ, order or direction in the nature of mandamus directing the respondent not to proceed with the proceeding under Section 21 of U.P.Trade Tax Act for the assessment year 1997-98 (U.P.) and 1997-98 (Central).” 2. The background facts of the case in a nutshell essentially are as follows : 3. The petitioner is carrying on the business of manufacture of Menthol and D.M.O. etc. after purchasing Mentha oil. The regular assessment under Rule 41 of U.P. Trade Tax Rules, 1948 ( hereinafter referred to as “Rules”) was framed by the respondent on 28-3-2000 for the assessment year 1997-98 (U.P.). The petitioner disclosed tax paid purchases of Menthol oil against Form III-C(2) for Rs. 51 lacs. The purchases of tax paid menthol oil was made from M/s Laxmi Trading Company, Noorpur Bijnor by means of three invoices. In each of the invoices issued by M/s Laxmi Trading Company it was mentioned that menthol oil are tax paid and it is against Form III-C(2). At the time of original assessment the assessing officer verified the three invoices and also signed the same by putting his signatures on it. The payment of the aforesaid purchases of Menthol oil covered with the aforesaid three bills was made by the petitioner by means of Account payee cheques and entry regarding such payments were recorded in the ledger of the account of M/s Laxmi Trading Company maintained by the petitioner and the statement of account issued by the Bank of Baroda also recorded the said entries. The assessing officer after verifying the materials available on record, passed the assessment order on 28-3-2000 under Rule 41(8) of the Rules for the assessment year 1997-98 accepting the tax paid purchases of Menthol oil disclosed by the petitioner for Rs. 51 lacs as well as purchases of the packing material against Form III-B. 4. It appears that the Trade Tax Officer, Chandpur, district Bijnor vide letter dated 3-7-2000 wrote to the respondent that M/s Laxmi Trading Company neither has disclosed the sale of Menthol oil in its return nor has deposited any tax thereon. It was also mentioned that assessment for the year 1997-98 against M/s Laxmi Trading Company was framed, however, the proceedings under Section 21 of the Act for the said assessment year is still pending. In the said letter it was admitted by the Trade Tax Officer Chandpur that Form III-C(2) No.109941 was issued by the office of Trade Tax Officer, Chandpur to M/s Laxmi Trading Company and the said form has not been either reported to have been used or lost till the date of issuance of letter. 5. Some information was also received by the respondent from the Assistant Commissioner (Assessment) Trade Tax, Khatima which disclosed the issuance of Form 3 Kha-032474 by the petitioner against the purchases of Rs. 46,399.80 of Polythene bags from M/s Shyam Plastic Industry, Udham Singh Nagar. As such separate notices under Section 21 of the U.P. Trade Tax Act (in short “Act”) dated 29-3-2001, 25-7-2000 and 4-8-2000 were issued against the petitioner, purported to have been issued on the basis of aforesaid information. The said notices are being sought to be challenged through this writ petition. 6. Learned counsel for the petitioner has submitted that the proceedings under Section 21 of the Act initiated by the respondent is wholly illegal and without jurisdiction and is based on his whims and he has no reasons to believe that whole or any part of the turnover of tax paid menthol oil has escaped assessment, specially when the purchases of menthol oil and Form III-C(2) were duly verified and signed by the respondent on 30th March at the time of regular assessment. It has been further submitted that the notices issued under Section 21 of the Act is based on the letter dated 3-7-2000 of the Trade Tax Officer, Chandpur indicating that M/s Laxmi Trading Company has not disclosed the sale of menthol oil in its returns, although the Trade Tax Officer, Chandpur Bijnor has admitted that Form III-C(2) No. 109941 was issued by him and it was not a forged one. It was further submitted that provisions of Section 21 of the Act cannot be resorted to for the purposes of inquiry or verification which has no direct nexus or live-link between the material coming to the notice of the assessing officer. It was further submitted that before the issuance of notice under Section 21 of the Act dated 29-3-2000 no reasons for arriving at his satisfaction was recorded ; hence the entire re-assessment proceedings are liable to be quashed. 7. It was also submitted that Form 3-B No. 032474 was issued on 22-12-1998 by the respondent. As such, the said form was not shown to have been used in the assessment year 1997-98. Thus the basis of issuance of notice under Section 21 of the Act for not mentioning the use of form in the assessment in question is totally groundless. 8. It was also submitted that the Trade Tax Officer, Chandpur district Bijnor has already passed an order on 5-9-2000 imposing tax on the purchases of menthol oil in the hand of M/s Laxmi Trading Company under Section 21 of the Act after taking into consideration the information sent by the respondent regarding sale of menthol oil for Rs. 51 lacs against Form 3C-2. 9. Learned Standing Counsel Sri U.K. Pandey appearing on behalf of department has supported the issuance of notice under Section 21 of the Act and has submitted that the notices have been issued in accordance with law. 10. Heard Sri Rakesh Ranjan Agarwal, learned counsel for the petitioner and Sri U.K. Pandey learned Standing Counsel appearing on behalf of respondent. 11. The only basis for issuance of notice under Section 21 of the Act was the information received from the Trade Tax Officer, Chandpur district Bijnor and Assistant Commissioner (Assessment) Trade Tax Khatima district Udham Singh Nagar. 10. Heard Sri Rakesh Ranjan Agarwal, learned counsel for the petitioner and Sri U.K. Pandey learned Standing Counsel appearing on behalf of respondent. 11. The only basis for issuance of notice under Section 21 of the Act was the information received from the Trade Tax Officer, Chandpur district Bijnor and Assistant Commissioner (Assessment) Trade Tax Khatima district Udham Singh Nagar. It is not disputed that Form III-C2 bearing serial No. 109941 was issued by the Trade Tax Officer, Chandpur to M/s Laxmi Trading Company and the sale of menthol oil for Rs. 51 lacs by M/s Laxmi Trading Company to the petitioner was accompanied by the said Form III-C2 and at the time of regular assessment of the petitioner, the entire material relating to the purchase of the said menthol oil for Rs. 51 lacs was duly verified by the respondent. The said purchase of menthol oil was also duly recorded in the books of account and supported by the invoices and Form III-C2 as well as by the statement of account issued by the Bank of Baroda which clearly indicates that the said commodity was purchased by the petitioner from M/s Laxmi Trading Company in accordance with the Act and Rules made thereunder. It appears that M/s Laxmi Trading Company neither disclosed the sale of menthol oil made to the petitioner nor the issuance of Form III-C2 to its assessing authority. However, this fact was communicated to the respondent and consequently the notices dated 25-7-2000 and 4-8-2000 were issued under Section 21 of the Act to the petitioner to verify the transaction. The Trade Tax Officer, Chandpur however, has admitted in his letter dated 3-7-2000 that the said Form III-C2 No. 109941 was issued to M/s Laxmi Trading Company. 12. It is neither the case of the respondent department that M/s Laxmi Trading Company was a fictitious concern nor does the respondent say that Form III-C2 No.109941 was a forged one. The record of the case shows that it was issued by the Trade Tax Officer, Chandpur to M/s Laxmi Trading Company in accordance with the rules. 12. It is neither the case of the respondent department that M/s Laxmi Trading Company was a fictitious concern nor does the respondent say that Form III-C2 No.109941 was a forged one. The record of the case shows that it was issued by the Trade Tax Officer, Chandpur to M/s Laxmi Trading Company in accordance with the rules. If the selling dealer does not submit account of user of the Form III-C2 issued to him that can never be a valid ground for rejection of the claim of the petitioner since there was no fault of the petitioner if the selling dealer does not disclose the transaction in its books of account and furnish details to its assessing officer. We are fortified in our view by the decision of this Court in M/s Om Trading Company v. Commissioner of Trade Tax, 2000 UPTC 227, wherein it has been held that there was no fault of the assessee if other dealer who issued the form did not furnish the details to its assessing officer. 13. This apart, assessment under Section 21 of the Act has already been made against M/s Laxmi Trading Company on 5-9-2000 imposing tax on the purchases of menthol oil after taking into consideration the information sent by the respondent to the Trade Tax Officer, Chandpur. Thus, the tax has already been imposed on the sale of menthol oil to the tune of Rs. 51 lacs in the hands of M/s Laxmi Trading Company and the said firm has been held responsible for paying the tax on the sale of menthol oil for Rs. 51 lacs to the petitioner, as such the petitioner cannot be held liable for any tax on the purchase of menthol oil for Rs. 51 lacs against Form III-C2 issued by M/s Laxmi Trading Company. 14. The another notice dated 29-3-2000 under Section 21 of the Act was purported to have been issued on the basis of the information received from Assistant Commissioner (Assessment) Trade Tax, Khatima, Udham Singh Nagar, vide letter dated 7-3-2000 wherein it was stated that the petitioner purchased Plastic Polythene bags from M/s Shyam Plastic Company, Sitarganj for an amount of Rs. 46,399.80 by issuing Form-B bearing serial No. 032474, as to avail the benefit of concessional rate of tax. At the time of original assessment proceeding, purchase of Rs. 16,429/- and Rs. 29,970/- amounting to Rs. 46,399.80 by issuing Form-B bearing serial No. 032474, as to avail the benefit of concessional rate of tax. At the time of original assessment proceeding, purchase of Rs. 16,429/- and Rs. 29,970/- amounting to Rs. 46,399.80 from M/s Shyam Plactic Industry, Sitarganj were disclosed in the purchase list. No use of Form IIIB was mentioned in the assessment year 1997-98 for the purchases of Polythene bags for a sum of Rs. 46,399.80. 15. Form III-B bearing serial No. 032474 which was used for the purchase of Polythene bags for Rs. 46,39,940/- has been annexed as ANNEXURE-SCA2 to the supplementary counter affidavit. A bare perusal of the said form clearly shows that the form was issued by the Trade Tax Officer on 22-12-1998 (during the assessment year 1998-99) to the petitioner and the petitioner had used the said Form on 22-7-1999. At this stage it will be useful to refer paragraphs 3 and 4 of the Supplementary rejoinder affidavit which is as under : “3. That in reply to the contents of para 3 of the supplementary counter affidavit it is submitted that the dealer had filed the details of Form 3B issued during the assessment year 1997-98 to various parties for the total amount of Rs. 32,476.36. The purchase relating to the Form 3B No.415678 of Rs. 12,430.20 was related to assessment year 1996-97 and the purchase relating to Form No. 415679 of Rs. 20,026/- is related to assessment year 1996-97. The purchases of these packing materials has been shown in the assessment proceeding at the time of hearing. 4. That in reply to the contents of para 4 of supplementary counter affidavit it is submitted that the dealer company has issued the Form 3-B No. 032474 to M/s Shyam Plastic Industry, Sitarganj district Udham Singh Nagar for Rs. 46,399.80 for the purchases related to A.Y.1997-98. This Form was issued by department on 28-10-1998 and dealer company had issued said Form on 22-7-1999. The purchase of bill mentioned in this form has been shown in the purchase of Packing material for the assessment year 1996-98, the list of purchase was filed along with other details at the time of assessment and was on assessment record. The information received from ACTT Khatima is verifiable from the assessment record itself. The purchase list of packing material for the assessment for 1997-98 is enclosed herewith as Annexure-SRA1 to this affidavit." 16. The information received from ACTT Khatima is verifiable from the assessment record itself. The purchase list of packing material for the assessment for 1997-98 is enclosed herewith as Annexure-SRA1 to this affidavit." 16. The aforesaid averments clearly shows that two forms No. 415678 and 415679 were used by the petitioner for the purchase of Polythene bags from M/s Jain Plastic Industries and M/s Anurag Plastic Product respectively. One form was used in the assessment year 1996-97 and the other form was used in the assessment year 1997-98 and the said transaction were duly recorded in the books of account of the petitioner and were also duly accepted by the respondents. So far as the dispute of Form III-B No. 032474 is concerned, that was issued by the respondent itself on 22-12-1998 i.e. in the assessment year 1998-99 and which in turn was issued on 22-7-1999 by the petitioner for the purchase of Polythene bags which was made by the petitioner in the assessment year 1997-98 but the form issued later on. Since Form 3B was issued on 22-12-1998 by the respondent, the use of the said form could not have been shown in the year 1997-98. Therefore the issuance of notice under Section 21 of the Act on the information received from the Assistant Commissioner (Assessment) Khatima has no foundation as form 3B itself was issued by the department on 22-12-1998 which was used for the purchase of packing material for Rs. 4,63,994/-. 17. A Division Bench of this Court in Deoki Nandan v. M.L. Gupta, Sales Tax Officer, Etawah, (1969) 23 STC 481 has held that existence of reasons on the part of Trade Tax Officer that certain turnover has escaped assessment is a condition precedent for acquiring jurisdiction under Section 21 of U.P. Trade Tax Act. The belief of the officer is not purely subjective but has to be based upon relevant material. Therefore it is not open to the officer concern to initiate proceeding under Section 21 of the Act with a view to launch a fishing and roving enquiry on the off chance of finding some escapement of tax. The belief of the officer is not purely subjective but has to be based upon relevant material. Therefore it is not open to the officer concern to initiate proceeding under Section 21 of the Act with a view to launch a fishing and roving enquiry on the off chance of finding some escapement of tax. He must have in his possession some material pointing towards the escapement of turnover before he can entertain a belief about the escapement and can assume jurisdiction under Section 21 of the Act and it is open to this Court in exercise of jurisdiction under Article 226 of the Constitution to scrutinize the material on record to ascertain the truth or otherwise of the challenge by the assesee of the existence of the belief on the part of officer on the escapement of turnover. 18. It is also notable that while issuing notices under Section 21 of the Act on 29-3-2000 the assessing authority has not recorded any reasons for his satisfaction. The material on which the Assistant Commissioner (Assessment) Trade Tax formed its belief must be on record and those material should be relevant for forming the belief that the turnover had escaped assessment to tax. 19. In view of the foregoing discussions the impugned notices issued under Section 21 of the U.P. Trade Tax Act as well as under Central Sales Tax Act cannot be sustained and are accordingly quashed. 20. In the result this petition succeeds and is allowed. There shall be no order as to costs. ————