K.B.Asthana, J. - (1.) The petitioner was assessed to circumstances and property tax by the Zila Parishad of Bareilly for the years 1966-67, 1967-68 and 1968-69. For each year he was required to pay Rs. 104/- and he paid the tax levied. The petitioner was then served by a notice, purporting to be under Section 133 of the U. P. Kshetra Samiti and Zila Parishad Act, 1961, (hereinafter referred to as the Zila Parishad Act), dated 13-9-1969, under the signature of the Tax Officer of the Zila Parishad, Bareilly, calling upon him to appear with his account books before the Tax Officer on 28-11-1969 in the office of the Zila Parishad for enquiry into his income for the three years 1966-67, 1967-68 and 1968-69 for the purposes of assessing tax. It is not disputed that the petitioner did not appear with his account books before the Tax Officer, though sufficient opportunity was afforded to him by repeated adjournments of the hearing by the Tax Officer. By an order 31-12-1969, the Tax Officer assessed the tax for the said three years on the basis of the information with him and levied for each of those three years an amount of Rs. 2,000/- as tax. The petitioner then filed an appeal before the Commissioner of Bareilly questioning the validity of enhancement of the tax for the said three years by a process of re-assessment. The Commissioner dismissed the appeal. Now the petitioner has come up to this court by a petition under Article 226 of the Constitution questioning the validity of the proceedings for re-assessment and enhancement on the tax and praying for the quashing of the orders passed by the Tax Officer and by the Commissioner on appeal.
(2.) It is not disputed that the petitioner had been assessed to circumstances and property tax for the year 1966-67, 1967-68 and 1968-69 and the amount of tax levied was paid by the petitioner for each year. It is obvious that the Tax Officer of the Zila Parishad on information with him had reasons to believe that the petitioner had not been properly assessed to circumstances and property tax for the said three years and with a view to reassess the tax for those years, called upon the petitioner to submit his accounts. Under the Zila Parishad Act, by its Section 128, a tax is imposed by a resolution passed by the Zila Parishad. The procedure for imposing a tax is laid down by Secs. 123 to 127 of the Act. The preliminary proposal for imposition of tax, as laid down in clauses (b) and (c) of sub-sec. (1) of Section 123, requires the specification of person or class of persons to be made liable to tax, the description of the property or other taxable things and circumstance in respect of which they are to be made liable and the amount or rate leviable from each such person or class of persons. Then Section 129 of the Act provides for the procedure for altering a tax in respect of the matters specified in clauses (b) and (c) of sub-sec. (1) of Section 123 and applies the procedure prescribed by Secs. 123 to 128 for the imposition of a tax, so far as may be. On the facts disclosed by the affidavits on records, we do not find that for altering the tax of the petitioner for the three years, 1966-67, 1967-68 and 1968-69, (if enhancement or re-assessment be said to be alteration), the procedure presecribed under Secs. 123 to 128 was followed. Learned counsel appearing for the Zila Parishad referred to Section 121 of the Zila Parishad Act, which keeps alive all rules and regulations and Bye-laws regarding the assessment and levy of taxes framed under the U. P. District Boards Act. It was not disputed before us by the learned counsel for the petitioner that immediately before the Zila Parishad Act came into force, there was in force a tax on circumstances and property in the Bareilly district, imposed by the District Board of Bareilly. The learned counsel for the Zila Parishad then relied on Rule 8 of the Model Rules for assessment and collection of tax on circumstance and property appended at page 275 of the District Board Manual, U. P., 1953 and contended that under the said Rule, the assessment of the petitioner, which had already been made in the previous years, could be altered. No doubt under Rule 8 the Board is imposed at any time to alter or amend the assessment list by altering an assessment, which has been made but the difficulty in the way of the Zila Parishad, in so far as the instant case is concerned, is that it is not the Zila Parishad (we substitute it for the Board in the said Rule) which has altered the assessment list by altering the assessment of the petitioner already made. No rule has been brought to our notice empowering a Tax Officer of the Zila Parishad to exercise the powers of the Zila Parishad for altering assessment which has been made. Even conceding the power to the Tax Officer to issue a notice under Section 133 of the Zila Parishad Act, calling upon a tax payer to furnish accounts with a view to determine the tax liability, will not carry the matter any further in so far as the power to make the alteration in the assessment list by altering an assessment already made is concerned. At worst the penalty, which the , petitioner incurred in not complying with the notice under Section 133 of the Zila Parishad Act, would be to pay a fine of Rs. 100/- on conviction. We do not find that the tax officer had the power or jurisdiction to alter the assessment list by altering an assessment already made. Had the Zila Parishad by a resolution made the said alteration something could have been said in favour of the validity of the imposition of the enhanced tax. We are compelled to hold, in the circumstances of the case, that the imposition of enhanced tax by the Tax Officer of the Zila Parishad by his order dated 31-12-1969 is null and void being without jurisdiction.
(3.) There is yet another circumstance which vitiates the proceedings for re-assessment. Assuming that the Tax Officer had jurisdiction, the notice under Section 133 of the Zila Parishad Act cannot be considered to be a notice calling upon a lax payer to show cause why the assessment list be not altered by altering the assessment already made and levying an enhanced tax. Admittedly, no such notice was ever served on the petitioner. He was only served with a simple notice calling upon him to furnish his account books and other data and material for determining his liability. We think the scheme for imposition of circumstances and property tax, both under the erstwhile District Boards Act and the Zila Parishad Act, appears to be that the tax actually assessed is shown in the assessment list of which a public notice is given inviting objections. For altering the assessment list also the same procedure, so far as may be, has to be followed. The law and the rules on the subject contemplate that even when any enhanced tax is proposed to be levied by reopening the assessment already made for the previous year, the amount to be enhanced has to be entered in the assessment list inviting objections. No such procedure was followed in the instant case. For this reason also the imposition of an enhanced tax is invalid.;