9911796707
TMI Blog1991 (7) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessment order in question and thus the said notice was liable to be quashed. It is not disputed that the said notice was served on the counsel for the petitioners who appeared in the original assessment proceedings. 2. According to the petitioners, the Sales Tax Officer, Jhansi, issued the said notice dated 23-8-1978 fixing 8-9-1978 for the proceedings under Section 21 of the said Act and thereafter another notice was again issued by the said officer on 12-10-1978 fixing the date as 10-11-1978. 3. Learned counsel for the petitioners ha; urged the second ground, first by contending that the service of the notice under Section 21 on the lawyer of the petitioners is not effectual service of the notice on the petitioners, therefore, initiation of said proceedings is illegal and without jurisdiction. In support of this contention, learned counsel for the petitioners placed reliance on a decision of a Division Bench of this Court in the case of Bhagwan Dass Munni Lal and another v. State of U. P. and another, 1990 UPTC 1175. In the said case the Division Bench has relied on an earlier decision of this Court in the case of Laxmi Narain Anand Prakash v. Commissioner of Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Subhasganj v. Commissioner of Sales Tax, U. P., Lucknow, 1978 UPTC 199, in paragraph 3 of the judgment a Division Bench of this Court has held as quoted hereunder : 3. Rule 77-A deals with acts which may be required to be done either by a dealer or by his agent. It specified the kinds of acts as well as the conditions under which certain persons can act as the dealer's agent or representative. In the next place, Rule 77-A goes into prescribe the condition under which alone service of notice or process on a person other than the dealer would be as effectual as if the same had been served on the dealer in person ; namely that the person must be a lawyer, an accountant or an authorised agent 'appointed by the dealer in writing in this behalf. Thus, person answering the category of lawyers, accounts or authorised agents appointed by the dealer in writing in this behalf alone are competent to accept notice on behalf of the dealer. Service or acceptance of notice by my other class of persons would not be as effectual as if the same had been served on the dealer in person. Thus a lawyer appointed in writing by the dealer, accountant and authorised agent, if appointed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the acts performed by the Advocate shall be binding on the assessee and the service of notice under Section 21 of the Act on the said Advocate was thus legal and valid. 9. Learned counsel for the petitioners then urged that even if the said Advocate was authorised in writing that authority cannot extend to the notice under Section 21 of the said Act. The argument made by the learned counsel for the petitioners is that the said Vakalatnama was filed in the original assessment proceedings and not in the proceedings under Section 21 of the said Act. Having perused the said Vakalatnama, we find that the said Vakalatnama authorises Sri Umesh Chandra Gupta, Advocate to receive notice and also to file replies thereto, to appear on various dates, to file writ and to make stay application in the said writ, to receive the replies thereof on behalf of the dealer, to make application for registration and to appear in various courts and also before the various authorities on behalf of the dealer. It is significant to note that the said Vakalatnama also receites 'UPYUKTA MAMLE KI PRARAMBH SE ANTIM TAK KI KARYAWAHI KE LIYE... Thus while coming to the present case, we find that it relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sections 21 and 22 of the said Act are commencement of proceedings after conclusion of assessment proceeding, but, in fact, it is on the other hand reopening the assessment order already passed by reassessing the dealer on account of escaped assessment or under-assessment etc. or passing an order rectifying the mistake which has crept in the original assessment order. Thus by reading the aforesaid provisions we are clearly of the opinion and accordingly held that the proceedings for the assessment year in question includes and empowers the assessing authority to correct its own error committed earlier. 11. It is also significant in this context to refer to the decision of the Supreme Court in the case of M/s. Kundan Lal Sri Kishan Mathur (U. P.) v. Commissioner of Sales Tax, U. P. and another, 1987 UPTC 404, whereunder the Supreme Court has held as hereunder : ....The effect of reopening the assessment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment cannot be said to survive, even partially, although the justification for reassessment arises because of turnover escaping assessment in a limited f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een transferred by means of the aforesaid order. However this has been submitted only during the course of arguments and there is nothing in the writ petition to show that the imcumbent who passed the assessment order is not the incumbent from whom case is alleged to have been transferred as aforesaid. In the absence of any averments to the said effect, learned counsel for the petitioners cannot be allowed to raise the aforesaid submission during the course of argument, as the same relates to factual averment. From the facts that emerges from the supplementary counter-affidavit and the rejoinder-affidavit filed by the petitioner it is established that initially notice under Section 21 was, in fact, issued by the Assistant Sales Tax Officer, Jhansi and the case since thereafter was transferred to the Sales Tax Officer, Jhansi by means of an order passed under Rule 81 (2) of the U. P. Sales Tax Rules and thus it cannot be said that proceedings subsequent to the intial proceeding cannot be taken by the officer to whom the case has been transferred. In this view of the matter, it cannot be urged that the proceedings under Section 21 of the Act taken by the Sales Tax Officer, Jhansi is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
