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TMI Blog2002 (3) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary for adjudication of the case are that M/s. Om Traders was the sole proprietorship concern of Smt. Kusum. Ranik and the business of the applicant has been completely stopped with effect from 31-3-1992. For the assessment year 1987-88 the Original assessment order under Rule 41(7) was passed on 29-9-1989 and notice under Section 21 of the U.P Trade Tax Act was issued and assessment order was passed on 12-7-1993 imposing a sum of ₹ 56.000/- as Trade Tax for the assessment year 1987-88 and ₹ 1,70,000/- for the assessment year 1988-89 (Annexure 1). Being aggrieved, by above, the revisionist filed an appeal under Section 9 of the 'Act' before the Assessment Commission (Judicial) Trade Tax, Meerut. It was contended by applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order was quashed merely on the facts that the notice under Section 21 was not served upon the assessee and the matter under appeal should have been remanded to the assessing authority after setting aside the order of the Assistant Commissioner (Judical) and the Trade Tax Officer. 5. It has been contended on behalf of the learned Counsel for the applicant that the learned Tribunal has committed an error of law after recording a finding that no service of notice under Section 21 of 'Act' was ever made upon the assessee and the appeal of Commissioner has no force, still the learned Tribunal has remanded the case to the assessing authority for issuing a fresh legal and valid notice under Section 21 of the 'Act' when learned Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 21 of the Act in view of the Division Bench decision of this Hon'ble Court in the case of Commissioner Trade Tax v. Mam Chand reported in 1978 STI 144? (c) Whether the service of notice for the purposes of initiation of proceedings under Section 21 is not a mere matter of procedure but is a condition precedent to exercise the power under Section 21 and if no notice was issued or if it is demonstrated that the notice issued was invalid the invalidity of the notice could not cure the fundamental defect from which proceedings suffered and accordingly the proceedings initiated in consequence of the said notice is liable to be quashed? (d) Whether the service of improper notice under Section 21 shall be without jurisdiction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings could be initiated without issue and service of notice. Service of a notice for purpose of initiating proceedings under Section 21 is not a mere procedural requirement but is a condition precedent. If no notice is issued or the notice issued is shown to be invalid or no notice has been served on the dealer the proceedings and the consequential order under Section 21 will be illegal and void respective of the fact that the dealer gets knowledge of the proceedings under Section 21. The words,' after issuing' also do not make any difference as it has been held to mean entire process of sending the notice and serving it. 9. In Banarasi Devi v. Income-tax Officer, (1964) 53 ITR 100 at 108 : (AIR 1964 SC 1742 at) it was observed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the petitioner has placed reliance on the decision of this Court in the case of Commissioner of Sales Tax v. Mam Chand, 1978 STI 144, wherein it was held: "It is well settled that service of notice under Section 21 is a condition precedent to the valid exercise of power under that provision. It goes to the very jurisdiction of the officer. Since the notice itself was not validly served the initiation of proceedings was without jurisdiction. The assessment order was rightly annulled". 11. Learned counsel for the petitioner has placed reliance on the decision of this Court in case of Samrat Biscuit & Confectionary Works v. The Commissioner of Sales Tax, U.P Lucknow, 1994 STI 28 Allahabad High Court, wherein it was held: "U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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