Manchanda, J. - (1.) This is a writ petition under Article 226 of the Constitution. The relief claimed is for the issue of a writ of prohibition to the opposite party, the Assistant Sales Tax Officer, Aligarh (hereinafter referred to as the S. T. O.) restraining him from proceeding to recover any tax for the year 1958-59, in respect of the assessment order passed by him on the 18th January, and for quashing the assessment order dated the 18th January, 1964, by the issue of a writ of certiorari.
(2.) The petitioner is carrying on business in the manufacture and sale of hand-made biris at Rewa, Madhya Pradesh. According to the petitioner he was appointing selling agents and one such selling agent appointed was Messrs Ghanshiam and Co. of Aligarh to whom biris were supplied. The assessment order dated 18th January, 1964, was made on Messrs Ghanshiam and Co., Aligarh. The counter-affidavit of the Assistant Sales Tax Officer (hereinafter referred to as the S. T. O.) was to the effect that Messrs Ghanshiam & Co. was only the branch and the head office was at Rewa. He also admitted that the statement of one Jumna Prasad, the manager of Ghanshiam & Co., was recorded by him as far back as 17th January, 1961, wherein the said manager had asserted that he was an employee of the petitioner-firm for about 12 or 13 years; that the firm of Ghanshiam & Co., had ceased to exist as such after July, 1959, and thereafter business was carried on in the name of Messrs, Panna Lal Umesh Kumar at Aligarh. It was further asserted by the S. T. O. that the proprietors of Messrs Ghanshiam & Co. were none other than the petitioner-firm and the former was in fact the branch of Messrs Panna Lal Umesh Kumar of Rewa. It was also admitted by the S. T. O. that on 12th September, 1960, one Fateh Singh, who described himself to be the manager of the petitioner-firm, had appeared before him and asked for an adjournment in respect of some case for the assessment year 1957-58. From these admissions it is abundantly clear that the S. T. O. was fully cognizant of the fact in January, 1961, that the firm of Ghanshiam & Co. of Aligarh was only a branch of the petitioner-firm and further that that firm had ceased to exist since 1959. Nevertheless, he proceeded to issue a notice dated 8th December, 1962, under Section 21 of the U. P. Sales Tax Act (hereinafter referred to as the Act) in the name of Messrs Ghanshiam & Co., Aligarh, a defunct firm. The process-server by his report dated 8th December, 1962, had reported, to quote from paragraph 8 of the counter-affidavit: On an enquiry it was revealed that the firm has ceased to exist and the proprietor of the firm has gone out somewhere and hence the notice has been affixed.
(3.) After slumbering for nearly four months the Sale? Tax Officer is said to have woken up to the fact that the affixation of the notice by the process-server on 8th December, 1962, was without his instructions and. therefore, ostensibly, for that reason issued a fresh notice on the 25th March, 1963. It was again affixed. The report made by the process-server on that date is even more significant and, according to him, it was some Sindhi who was occupying this shop but even he had left. The Sales Tax Officer, thereafter, issued two or three other notices, the last one being dated the x8th of January, 1964, and each one of these notices was issued in the name of Ghanshiam & Co., Aligarh, and served by affixation. In the counter-affidavit, the justification for serving notices by affixation on a dealer who had ceased to carry on business since 1959, is that "no other mode of service was feasible in the circumstances of the case". Thereupon, an exparte assessment was made on the 18th of January, 1464, on Ghanshiam & Co., Biri Dealers, Aligarh.;