- (1.) By means of the present writ petition, the petitioner is challenging the order dated January 7, 2004 passed by the Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad by which he has granted approval under the proviso to Section 21 of the U. P. Trade Tax Act (hereinafter referred to as, "the Act") to initiate the proceeding beyond the normal period of limitation for the assessment year 1997-98 and the notice issued under section 21 of the Act by the assessing authority in pursuance of the order passed by the Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad.
(2.) It appears that the assessing authority had sought approval to re-open the proceeding on the ground that after passing of the assessment order dated July 18, 1998 on an inquiry made by the S. T. O. (SIB) from the seized books of account on March 31, 2000, it was found that the petitioner had purchased diesel from outside the State of U. P. for Rs. 36,27,027 which was provided to the transporter against the price for transportation of sugarcane which amounts to sale on which tax could not be levied in the assessment order. Before passing the order under the proviso to section 21(2) of the Act, the Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad had issued notice to the petitioner and provided opportunity to file reply. The petitioner filed reply and contended that the sale of diesel was not made. The diesel was given to the transporter for transportation of sugarcane which did not fall within the purview of "sale". The Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad, did not accept the explanation of the petitioner and granted approval. On the basis of the alleged material, notice under section 21 of the Act has been issued by the assessing authority.
(3.) Heard Sri Bharat Ji Agrawal, learned senior advocate, assisted by Sri Piyush Agrawal, learned counsel appearing on behalf of the petitioner and learned standing counsel.;