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TMI Blog2009 (7) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000 (annexure 9), notice Nos. 844 and 845 dated August 4, 2000 (annexures 10 and 11) under section 21 of the U.P. Trade Tax Act, 1948 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 March 29, 2000 issued by respondent No. 1 under section 21 of the U.P. Trade Tax Act, 1948 for the assessment year 1997-98 (U.P.) and 1997-98 (Central) (annexure Nos. 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 the U.P. Trade Tax Act for the assessment year 1997-98 (U.P.) and 1997-98 (Central). The background facts of the case in a nutshell are essentially as follows: 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 the U.P. Trade Tax Rules, 1948 (hereinafter referred to as, the Rules ) was framed by the respondent on March 28, 2000 for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2001, July 25, 2000 and August 4, 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. The learned counsel for the petitioner has submitted that the proceedings under section 21 of the Act initiated by the respondent are wholly illegal and without jurisdiction and are 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 IIIC(2) were duly verified and signed by the respondent on March 30, at the time of regular assessment. It has been further submitted that the notice issued under section 21 of the Act is based on the letter dated July 3, 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 IIIC(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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 IIIC(2) to its assessing authority. However, this fact was communicated to the respondent and consequently the notices dated July 25, 2000 and August 4, 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 July 3, 2000 that the said form IIIC(2) No. 109941 was issued to M/s. Laxmi Trading Company. 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 IIIC(2) 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 IIIC(2) issued to him that can never be a valid ground for rejection of the claim of the petitioner since there was no fault o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 IIIB issued during the assessment year 1997-98 to various parties for the total amount of Rs. 32,476.36. The purchases relating to form IIIB 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 counterffidavit it is submitted that the dealer-company has issued form No. IIIB No. 032474 to M/s. Shyam Plastic Industry, Sitarganj district Udham Singh Nagar for Rs. 46,399.80 for the purchases related to assessment year 1997-98. This form was issued by the Department on October 28, 1998 and the dealer-company had issued the said form on July 22, 1999. The purchase of bill mentioned in this form has been shown in the purchase of packing material for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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