9911796707
TMI Blog2018 (11) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Trade Tax Act or Entry Tax for the assessment years 2000-01 to 2008-09 as it had been granted benefit of composition scheme under Section 7D of the U.P. Trade Tax Act in respect of the work contracts awarded to it prior to the year 2008. The above writ petitions relate to the assessment year 2009-10 (Entry Tax) and assessment years 2010-11, 2011-12 and 2009-10 (U.P. VAT Act). The petitioner by means of these writ petitions have challenged the assessment orders dated 31.03.2016 passed in the writ petitions mentioned at serial Nos. 1, 2 and 4 and the assessment order dated 31.01.2017 passed in writ petition mentioned at serial number 3 above. All the said assessment orders have been served upon the petitioner on 21.07.2018. It may be pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s served after 18 months. He has pointed out from the various enclosures to the petition and the counter affidavits that there is manipulation in the records. Due to delay in service of the orders the presumption is that the orders are barred by limitation and are without jurisdiction. Sri C.B. Tripathi, on the other hand submits that admittedly there is a delay in serving the copies of the orders upon the petitioner but that is not enough to set aside them. The antedating of the orders is a question of fact and that as the petitioner has a remedy of appeal under Section 55 of the Act against these orders the above aspect can be very well be considered in appeal. We find from the order sheet that the writ petitions were duly entertained a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 21.07.2018. In between right from the dates of the order till the aforesaid date i.e. for 28 and 18 months respectively no efforts were made for the service of the said orders upon the petitioner primarily by the previous officer having the responsibility. The counter affidavits are completely silent as to reason why the Assessing Officer or the Department could not take any steps for the service of the orders upon the petitioner right from 31.03.2016 or 31.01.2017 till 10.07.2018. It does not even disclose any reason why the Joint Commissioner, Mirzapur made telephonic inquiries only on 10.07.2018 and not earlier, which set the machinery into motion for service of the orders upon the petitioners. In this manner, there is no explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 10 and half months. The court held that in the absence of any explanation for the delay, it must be presumed that the order was not made on the date it is purported to have been made but subsequently after the expiry of the limitation period. The relevant observation of the court is reproduced hereinbelow:- "There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years period." A similar view was expressed by the Andhra Pradesh High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the orders passed on the purported date but on the subsequent date. This presumption arises on the admitted facts without going into any factual controversy. The decisions relied upon by Sri Tripathi to convess that since the petitioner has an alternative remedy of filing an appeal the matter ought not to be interfered with in writ jurisdiction are not of much help to him for the reason that the writ petitions were duly entertained after hearing the parties and that the revenue even submitted his defence by filing counter affidavits. In the meantime during the pendency of these petitions, the period of limitation for filing the appeals has also expired which now leaves the petitioner remedy less. Moreover alternate remedy is not an absol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri C.B. Tripathi, we are of the firm view that the work and conduct of the Officers of the department especially that of the then assessing officer requires strict scrutiny. Therefore, we direct Sri C.B. Tripathi, learned Special Counsel to seal the record available with him i.e. assessment files of the petitioner for the years 2009-10, 2010-11 and 2011-12 and the four registers i.e. two registers (R-5B) regarding hearing proceeding and the two registers (R-30) regarding service of copies of the orders upon the petitioner and to hand over the same to the Commissioner, Commercial Tax U.P., Lucknow for holding an inquiry in the matter so as to fix responsibility for manipulating in the records and for causing inordinate delay in the service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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