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2016 DIGILAW 694 (UTT)

Kinu Sarkar v. State of Uttarakhand

2016-10-03

V.K.BIST

body2016
JUDGMENT : V.K. Bist J. Present writ petition has been filed by the petitioner challenging the recovery citation dated 08.06.2016 issued by Tehsildar, Gadarpur, District Udham Singh Nagar/respondent no.3. 2. Case of the petitioner is that petitioner is a proprietor of Sarvsri R.B. Enterprise, Gadarpur. Petitioner carries on a business of sewing/stitching and quilts (Rajai). After starting the business, the daughter- in-law of the petitioner incurred loss and business was closed in the year 2013. 3. It is the contention of learned counsel for the petitioner that petitioner has nothing to do with the aforesaid business and being a father-in-law he became proprietor of the firm. Petitioner is a poor labourer and was never involved in the business. 4. On 30.07.2015 an ex-parte order was passed by respondent no.4 under Section 9(2) read with Section 31 of the Central Sales Tax Act. Prior to passing of the said order, no notice was even issued to the petitioner. It is only when the recovery citation was issued, the petitioner came to know about the order passed by the Sales Tax Officer. Aggrieved by the order dated 30.07.2015, petitioner filed an appeal before Joint Commissioner (Appeal), Commercial Tax First, Uttarakhand, Haldwani along with the delay condonation application. 5. Submission of learned counsel for the petitioner is that Amin is coming to the petitioner regularly and insisting for depositing the amount. He threatened the petitioner that in case amount is not deposited, the petitioner will be arrested and will be sent to jail. Learned counsel for the petitioner requested that till the disposal of the appeal, recovery citation be kept in abeyance. It is submitted that petitioner filed stay application along with the delay condonation application. 6. Heard learned counsel for the petitioner as well as learned Brief Holder for the State. 7. Recovery citation issued by respondent no.3 in pursuance of the order passed by the Sales Tax Officer under Section 9(2) read with Section 31 of the Central Sales Tax Act. The remedy of appeal is available against the order of assessment, which he has already preferred. Unless the order passed by the Assessing Officer is set aside, no order can be passed for staying the recovery citation. The proper forum for the same is the Appellate Authority and the petitioner can approach the Appellate Authority for early disposal of the stay application as well as condonation of delay application. 8. Unless the order passed by the Assessing Officer is set aside, no order can be passed for staying the recovery citation. The proper forum for the same is the Appellate Authority and the petitioner can approach the Appellate Authority for early disposal of the stay application as well as condonation of delay application. 8. Learned Brief Holder submitted that in case petitioner approaches the Appellate Authority, delay condonation application as well as stay application of the petitioner shall be decided at the earliest. 9. Considering the submission of learned Brief Holder, I dispose of the writ petition by permitting the petitioner to approach the Appellate Authority for early hearing of the delay condonation application as well as stay application. In case petitioner approaches the Appellate Authority, the Appellate Authority shall decide the same within a period of three weeks from the date of production of certified copy of the order.