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TMI Blog2010 (7) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... required certificates have not been furnished. The learned counsel for the petitioner submitted that the notices under section 21 have not been served on the petitioner in accordance with rule 77 of the U. P. Trade Tax Rules (hereinafter referred to as, "the Rules") and, therefore, the proceedings under section 21 and the assessment orders, passed in pursuance thereof, are illegal. He submitted that to assume the jurisdiction to proceed under section 21 for making reassessment, it is a condition precedent to serve the notice under section 21 upon the assessee in accordance with rule 77. In case the notices under section 21 are not served, the entire proceedings will be without jurisdiction and liable to be quashed. Reliance is placed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was on leave when the process server went to the premises. There is no denial that the report of the process server was wrong. The illness of the wife of Sri Suman Raj Agarwal is not supported by any document. Therefore, the plea of the petitioner that Sri Suman Raj Agarwal was on leave since March 25, 2002 till March 31, 2002 cannot be believed, inasmuch as the presence of Sri Suman Raj Agarwal on March 27, 2002 at the factory premises when the process server, Sri Hari Singhal, met him has not been disputed. In the circumstances, it cannot be disputed that on March 27, 2002 Sri Suman Raj Agarwal did meet the process server but refused to take the notices. He submitted that such refusal to receive the notices amounts to service of the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on March 27, 2002 as he was on leave. We do not find any substance in the argument of learned counsel for the petitioner. It is not disputed that Sri Suman Raj Agarwal was the author ised representative and was the employee of the petitioner-company. In none of the paragraphs of the writ petition it is specifically stated that Sri Suman Raj Agarwal had not met the process server on March 27, 2002. No evidence has been adduced to establish that his wife was ill and he was on leave between March 25, 2002 and March 31, 2002. Therefore, we are not able to accept the submission of the petitioner that Sri Suman Raj Agarwal had not met the process server on March 27, 2002. Rule 77(1)(a) and rule 77(3) of the Rules read as follows: "Rule 77. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein incriminatory materials were found, which have been referred in the order. Therefore, it cannot be said that there was no material to initiate the proceedings. It is the settled principle of law that in the writ jurisdiction under article 226 of the Constitution, this court cannot examine the sufficiency of the material. So far as the ex parte order is concerned, we are of the view that disputed question of facts are involved, which cannot be examined in writ jurisdiction. The petitioner has an alternative remedy by way of moving an application under section 30 for recalling of the order as well as has a remedy by way of appeal under section 9 of the State Act. Disputed questions of fact can more appropriately be examined by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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