VIPIN KUMAR VINAY KUMAR Vs. COMMISSIONER SALES TAX U P LUCKNOW
LAWS(ALL)-1990-3-67
HIGH COURT OF ALLAHABAD
Decided on March 15,1990

VIPIN KUMAR VINAY KUMAR Appellant
VERSUS
COMMISSIONER SALES TAX U P LUCKNOW Respondents

JUDGEMENT

OM PRAKASH, J. - (1.) This is a revision relating to the assessment year 1978-79 against the Tribunal's order dated February 28, 1989, passed under section 21 of the U. P. Sales Tax Act, 1948. Original assessment on the assessee was made on February 17, 1981. Thereafter, a letter dated March 10, 1983 was addressed to the assessing officer by the Sales Tax Officer (S. I. B.) stating that from the account books of the assessee seized by the Income-tax Department on July 23, 1981, it transpired that certain turnover had escaped assessment, and therefore, he advised the assessing authority to issue notice for the assessment year 1978-79 under section 21 of the Act immediately, so that the limitation might not expire. Thereupon, the assessing authority vide order-sheet dated March 17, 1983, took a decision to issue notice under section 21 and sent the notice accordingly on March 24, 1983. The contention of the assessee's counsel is that when the notice was sent by the assessing authority, no material was before him except the letter dated March 10, 1983, addressed to him by the Sales Tax Officer (S. I. B.) wherefrom he could have reason to believe that some turnover of the assessee had escaped assessment to tax. From perusal of the record produced by the Standing Counsel before me, it clearly appears that the assessing officer simply acted upon the letter dated March 10, 19883, which was sent to him by the Sales Tax Officer (S. I. B.) and he did not look into any record showing the escaped turnover to have the subjective satisfaction that a given turnover had escaped assessment. Section 21 (1) can be pressed into service by the assessing authority only when he could have reason to believe from relevant record or material that certain turnover had escaped assessment. In this case whatever satisfaction was gathered from the record that was only by the Sales Tax Officer (S. I. B.) and the assessing authority simply took the letter of the Sales Tax Officer (S. I. B.) for granted. The assessing authority himself did not see any record to have the satisfaction that some turnover of the assessee had escaped assessment entitling him to issue notice under section 21 of the Act. There is a settled law that jurisdiction under section 21 of the Act cannot be exercised by any authority merely on the basis of surmises, conjectures or on the basis of the satisfaction reached by some other authority. To invoke section 21,, the assessing authority himself should have had the reason to believe and that could be possible only when he himself would have seen the record leading to the conclusion that the turnover of the assessee had escaped assessment. For the reasons, the order of the Tribunal dated February 28, 1989 cannot be sustained. The assessee clearly raised ground No. 10 in the memo of appeal in this behalf, but the Tribunal failed to discuss it and record a clear finding thereon. In the result, the revision succeeds and is allowed and the proceedings initiated under section 21 for the assessment year 1978-79 are quashed. No order as to costs. Petition allowed. .;


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