9911796707
TMI Blog2007 (7) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... a writ, order or direction in the nature of mandamus commanding the respondent No. 2 not to proceed further and not to initiate any penalty proceedings, i.e., not to pass any penalty order in pursuance of the impugned notice dated April 17, 1993; (iii) Issue such other and further writ, order or direction which this honourable court may deem fit and proper in the nature and circumstances of the present case; (iv) Award costs of the petition to the petitioner. Briefly stated the facts giving rise to the present writ petition are as follows: According to the petitioner it is a registered firm and is engaged in the business of sale of papers, etc. It is a registered dealer under the provisions of the U.P. Trade Tax Act, 1948 (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under challenge in the present writ petition on the ground no tax liability has been fixed upon the petitioner in respect of the transactions of sale against form IIIB made to Sunil Paper Convertor, Kanpur either in the original assessment order or the reassessment order passed under section 21 read with section 30 of the U.P. Act, the Sales Tax Officer, Sikandrabadrespondent No. 2 has no jurisdiction to initiate penalty proceedings. Further a plea of limitation has also been raised on the ground that notice in question has been issued after a gap of about ten years from the end of assessment year 1982-83. On merits it has been stated that form IIIB submitted by the petitioner had been duly examined at the time of original assessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inder affidavit filed by the petitioner it has been stated that nowhere it has been stated that firm Sunil Paper Convertor, Kanpur was not a registered dealer and, therefore, the petitioner had acted bona fidely and no case of penalty has been made out. We have heard Sri Ashok Kumar, learned counsel for the petitioner and Sri M.R. Jaiswal, learned Standing Counsel for the respondents. The learned counsel for the petitioner submitted that in the original assessment proceedings and also in the reassessment proceedings the sales made against form IIIB by Sunil Paper Convertor, Kanpur have been examined and accepted and, thereafter tax liability has been fixed upon the petitioner, thus the question of taking the benefit of fake declaration for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional notice. It is simply a show-cause notice wherein the petitioner has only been asked to show cause. The petitioner ought to have filed his reply and contest the matter before the authority concerned where all the questions of fact and the law can be gone into. He further submitted that as the petitioner has been granted benefit on the basis of fake declaration form IIIB the proceedings for imposition of penalty can be initiated. Whether or not the penalty can be imposed is the question to be decided by the authorities. He has relied upon a decision of the apex court in the case of State of U.P. v. Anil Kumar Ramesh Chandra Glass Works [2006] 145 STC 656; [2006] 6 RC 566; [2006] UPTC 811; [2005] 11 SCC 451. We have given our anxiou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Dabur India Limited v. State of U.P. [1989] UPTC 971 wherein this court has held that the point of limitation can be and ought to be agitated before the statutory authorities. In the case of Bashir Ahmad Misbaul Haq, Sambhal, Moradabad v. State of U.P. [1992] UPTC 418 this court has held as follows: ". . . As pointed out by the Supreme Court in Lalji Haridas v. Income-tax Officer [1961] 43 ITR 387, the question whether the assessment proceedings initiated against a person are barred by limitation and are, thus, without jurisdiction, can and ought to be raised by him before the assessing authority; that is not a point which can be legitimately agitated in writ proceedings. It may be observed that these observations came to be made b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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