S.C. Manchanda, J. - (1.) The disposal of this writ petition will also govern the disposal of Civil Misc. Writ No. 1297 of 1963. This is a writ petition under Article 226 of the Constitution directed against the penalty notices and recovery proceedings pursuant to an order passed under Rule 23 of the U.P. Sales Tax Rules (hereinafter referred to as the Rules) dated the 13th of January 1961, whereby a demand for Rs. 17,289/- was raised. The prayers is for an appropriate writ quashing the recovery proceedings as well as the penalty notice dated, the 21st of March, 1963, under Section 15(a) of the Act by and for the quashing of the order under Rule 23 dated the 30th of January, 1961. The latter prayer was permitted to be added notwithstanding an objection raised by the opposite party.
(2.) The facts leading up to this writ petition are these. The petitioner is a registered partnership firm and carries on business of commission agency in food grains, edible oil etc. The relevant assessment year is 1956-57. Food grains were not liable to sales tax till the financial year 1955-56. They were made liable to sales tax with effect from the 31st of March, 1956, i.e. for the assessment year 1956-57, vide notification No. ST-6068-S. By a subsequent Notification dated, the 30th of September, 1956, in exercise of the powers conferred by Section 4 of the U.P. Sales Tax Act, and in supersession of the Notification dated the 31st March, 1956, it was ordered that with effect from October, 1956, the provisions of Section 3 of the said Act shall not apply to the sales of food grains on condition that the dealer obtains an exemption certificate from the assessing authority on the payment of annual fee mentioned therein. Pursuant to that notification the petitioner firm made an application dated, 14th of December, 1956, for exemption in the prescribed form to the Sales Tax Officer, Saharanpur, and also deposited in due course a sum of Rs. 1,461/- towards the exemption fee for the relevant assessment year, 1956-57. The said Sales Tax Officer on the 6th of October, 1959, passed on exemption order under Rule 20B of the Rules, framed under the said Act. In the final exemption order the petitioners turnover in respect of the food-grains was determined at Rs. 12,00,000/- and as that turnover was more than Rs. 7,00,000/- upon which the maximum exemption fee of Rs. 8,000/- was leviable, the Sales Tax Officer determined the exemption fee at Rs. 8000/-. The petitioner having already deposited a sum of Rs. 1,461/- was directed to deposit the balance of exemption fee, viz., Rs. 6,539/- within 16 days. By a separate order of the same date, the Sales Tax Officer passed an assessment order in respect of the petitioner's turnover of goods other than foodgrains.
(3.) Feeling aggrieved by the aforesaid orders the petitioner firm filed appeals both against the exemption order passed under Rule 20B of the Rules and another appeal against the assessment made under Rule 41(5) relating to the assessment in respect of commodities other than food grains. While these appeals and particularly while the appeal against the exemption order under Rule 20B, was pending the Sales Tax Officer proceeded to make an assessment under Rule 23 of the Rules. No notice before making this assessment was served on the petitioner and in making the assessment it was specifically stated that the assessment was being made under Rule 23 read with Rule 20B(1) of the Rules.;