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TMI Blog2006 (7) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed. The petitioner, thus, possessed a valid eligibility certificate on the basis of which the exemption has been granted to the petitioner from payment of sales tax (now trade tax) for the assessment years 1984-85, 1985-86, 1986-87, 1987-88 and 1988-89. 3. It appears that despite the aforesaid eligibility certificate being in force, the assessing authority took some different view in the assessment proceedings and, therefore, the petitioner filed one more writ petition bearing No. 462 of 1989 Manak Tala Chemicals (P) Ltd. v. State of U. P. [1991] UPTC 913 which was also allowed after holding that the assessing authority has no jurisdiction to sit in judgment over the grant of eligibility certificate granting exemption from payment of trade tax. 4. The petitioner again felt aggrieved when a notice under Section 21 of the Sales Tax Act dated March 22, 1993 was issued and received on March 30, 1993 fixing March 31, 1993 for appearance and hearing. This notice related to the assessment years 1984-85 and 1985-86. As per the averments made in the writ petition, the petitioner appeared before the assessing authority and apprised him that the notice has been issued beyond limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that case no such sanction would be required but it is not the case of the State that after exclusion of the said period, limitation would fall within four years. 8. Before proceeding to discuss the points involved, it would be necessary to put on record that the limitation for issuing notice under Section 21 was enhanced from two years to four years by means of Act No. 28 of 1991 with effect from February 19, 1991. The extended period of limitation was prescribed as eight years during which period before the proceedings could be initiated sanction or permission of the Commissioner was necessarily to be obtained. The retrospective operation of the period of limitation prescribed by Act No. 28 of 1991 became the subject-matter of challenge in Chopra Diesel Sparre v. State of U. P. [Writ Petition No. 1156 of 1992(M/B) decided on February 22, 1993-Allahabad High Court], wherein a division Bench of this Court declared that such amendment could not have effect with retrospective date, vide orders dated February 22, 1993. However, in a subsequent judgment pronounced by the apex court in the case of Additional Commissioner (Legal) v. Jyoti Traders reported in AIR 1999 SC 526 , the ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted by the Commissioner only on being satisfied either on his own or on the basis of the reasons recorded by the assessing authority that it is just and expedient to reopen the assessment. 11. Once the proviso postulates recording of reasons by the assessing authority, it necessarily obligates the Commissioner or the Additional Commissioner to consider such reasons and make them known to the assessee, before he finally forms his satisfaction and even if the Commissioner or the higher authority on his own reasons feels satisfied that it is just and expedient to reopen the assessment, it would still require that such reason must be made known to the dealer also so that before the assessment is reopened he may have an opportunity to satisfy the higher authority that the reasons assigned by the assessing authority are not relevant or they are incorrect or they do not make out a legal ground for reopening of the assessment and likewise if the Commissioner or the higher authority proposes to authorise the assessing authority for reopening the assessment on his own, then also reasons for such satisfaction have to be supplied to the dealer, so that he may have a say to convince the high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Additional Commissioner. The mere fact that the notice was served on the petitioner on March 30, 1993 would not cure the inherent lack of the authority of the assessing authority to issue notice without sanction of the Commissioner or the Additional Commissioner. It is also to be taken note of that it has not been brought on record nor it has been disclosed that on what date the assessing authority has sent its request for approval to the Commissioner, i.e., whether he has sent the request before issuance of the notice on March 22, 1993 or after issuance of the notice but since the approval admittedly has been granted on March 29, 1993, i.e., after issuance of the notice, it is hardly relevant as to when such a request has been made by the assessing authority. 16. The assessing authority, on one hand, has issued the notice under Section 21 without any authority and, on the other hand, has passed an ex parte order of reassessment though the notice was served only on March 30, 1993 upon the petitioner apparently because thereafter the matter would have become barred by limitation, after March 31, 1993. 17. It may be that in a case when limitation is to expire, the assessing author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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