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TMI Blog2019 (8) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... after service of notice by affixation, no such report has been brought on record as provided under the Rules - In spite of the fact being within the knowledge of the respondent that the petitioner has changed the place of business to the new address still notice by affixation has been made in the earlier address. The impugned order are hereby set aside - petition allowed. - Writ Tax No. - 760 of 2017 - - - Dated:- 28-8-2019 - Bharati Sapru And Piyush Agrawal JJ. For the Petitioner : Nishant Mishra,Tarun Gulati For the Respondent : C.S.C. ORDER (DELIVERED BY HON'BLE PIYUSH AGRAWAL, J.) By means of present writ petition the petitioner has prayed for quashing of the orders dated 31st March, 2017 for the assessment year 2012-13 and 2013-2014 both under U.P. Vat Act as well as under Central VAT Act. Heard Mr. Ravi Kant, Senior Advocate assisted by Mr. Nishant Mishra and Mr. C.B. Tripathi, special counsel for the State of U.P. The petitioner is a company incorporated under the provision of Indian Companies Act, 1956. Petitioner an online Age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders have been passed by the respondents are wholly without jurisdiction and gross violation of principle of natural justice. It is further argued that the assessment orders for the assessment year 2012-13 both under Act 2008 and CST Act are being passed after the expiry of period of limitation prescribed under Section 29 (6) of the Act and therefore the orders are liable to be set aside. Learned counsel further submits that the normal limitation starts from 31st March, 2013 which ends on 31st March, 2016 but as per limitation prescribed under Section 29(6) of the Act ends on 30th September, 2016. Since, the impugned orders have been passed on 31st March, 2017 and the assessment orders were received on 12.10.2017, therefore, the assessment orders are vitiated and are liable to be set aside as barred by limitation. Learned counsel for the respondent could not justify the action of the respondent passing the orders for the assessment year 2012-13 both under Act 2008 and CST Act in question after the expiry of period of limitation as provided under Section 29(6) of the Act. In view of above mentioned facts that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the petitioner has a remedy of filing an appeal against the assessment orders and that it was not necessary to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 23. Having heard the learned counsel for the parties, we are of the opinion that the rule of alternative remedy is not a bar for entertaining the writ petition. No doubt it is a rule of discretion but in the instant case, we are of the opinion that there would be a travesty of justice if we relegate the petitioner to the alternative remedy of an appeal. We are of the opinion that justice is required to be done at the earliest. We find that there is a total abdication by the respondents in adhering to the process of service of summons under Rule 72 of the Rules. Rule 72 of the Rules has been ignored and a procedure which is not known to law has been adopted. For facility, the Rule 72 of the Rules is extracted hereunder:- 24. Rule 72(a) of the Rules provides that the service of summons is required to be made on a dealer or a person concerned in person or his agent. In the instant case, the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st known to them, chose deliberately to serve the notice by affixation at the Noida address. Such tactics adopted by the assessing authority in getting the service effected upon the petitioner was in gross violation of Rule 72 of the Rules. 36. We also find that the entire exercise of service was done within four days without taking recourse to the other mode of service, namely simultaneously service by registered post with acknowledgement due. The assessment order indicates that the first and last date of hearing of the assessment proceedings was 10.12.2015 and that the assessment order was passed on 15.12.2015. The counter affidavit reveals that the assessment order was served by attachment at the Noida address. This was done deliberately by the respondents so that the respondents could withdraw the amount through garnishee notices by exerting pressure upon the bank authorities. The Court gets an uncanny feeling that a deliberate attempt was made by the respondents to withdraw the money from the petitioner's bank account through dubious mean by passing ex-parte assessment orders and not allowing it to be served validly upon the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/-. 19. We also direct Principal Secretary, Trade Tax, U.P. Government to look into the manner in which respondent 1 has functioned in this case and despite strictures and penal cost imposed by this Court in earlier judgment dated 29.02.2016 and also directing Commissioner Trade Tax to get an inquiry conducted against erring officials, respondent 1 has not cared to mend his ways to conduct but has proceeded to harass a dealer like petitioner and appropriate disciplinary action be taken at the earliest and finalise the same. It may also be considered by Principal Secretary, Trade Tax, U.P. Government as to whether, respondent 1 is a person fit to be assigned such important quasi-judicial functions. Admittedly, the two judgments shows the working of the departmental authorities and the manner in which they are working is not in the interest of either parties. The case in hand also service of notice has been made by affixation on the earlier address of the petitioner in spite of the fact being within their knowledge that the petitioner have changed the place of business to the new address but still with a mind set of passing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions as mentioned in the Rule. Even after service of notice by affixation, no such report has been brought on record as provided under the Rules. In spite of the fact being within the knowledge of the respondent that the petitioner has changed the place of business to the new address still notice by affixation has been made in the earlier address. This fact is also came to the notice of this Court in earlier two rounds of litigation filed by the petitioner in Writ Nos. 80 and 168 of 2016 and Writ No. 546 of 2016 which has been allowed with the cost of ₹ 2 lac and ₹ 50,000/-. The record further reveals that the impugned order has been passed in gross violation of the provision of the Act and without proper service of notice upon the petitioner. The said fact could not also be disputed by the learned counsel for the respondent. In view of the facts and circumstances of the case as stated above, the impugned order dated 31.3.2017 for the assessment year 2013-14 under the U.P. Act 2008 and CST Act are hereby set aside. It is made clear that respondents are permitted to initiate the proceeding by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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