R. B. Lal, J. - (1.) BY this writ petition under Article 226 of the Constitution of India, the petitioner pray for quashing the assessment order dated 26-3-77 passed by the Assessing Officer under the Provisions of U. P. Sugarcane (Purchase Tax) Act, 1961 (briefly the Act) and orders dated 25-7-77 and 10-9-81 passed by the Appellate Authority i.e. Assistant Sugarcane Commissioner under the Act.
(2.) THE relevant facts lie within narrow compass. THE Assessing Officer under the Act assessed certain amount of purchase tax on the petitioners for the month of February, 1977. THE stand of the petitioners was that they had crushed only that sugarcane which they had grown in their own fields and, therefore, they were not liable to pay any purchase tax under the Act. Aggrieved by the assessment order dated 26-3-77 the assessees (the present petitioners) preferred appeal under sub-section (5) of Section 3 of the Act. This appeal was dismissed by the Assistant Sugar Commissioner by order dated 25-7-77 on the ground that the memorandum of appeal had not been filed in duplicate as required under sub-rule (1) of rule 24 of the Rules framed under the Act. THE present petitioners moved an application for setting aside this dismissal order and for restoration of the appeal to its original number but his application was rejected by the appellate authority by order dated 10-9-81 with the observation that there was no provision for a reconsideration of the appeal and for its restoration. I have heard learned counsel for the petitioners and the learned Standing Counsel. No counter-affidavit was filed on behalf of the respondents. The facts given in the petition supported by affidavit are, therefore to be accepted as correct. It has been averred in the petition that the Appellate Authority afforded no opportunity to the petitioners before passing the order of rejection of the appeal dated 25-7-77. No notice or information was given either before passing the order dated 25-7-77 or thereafter. The petitioners came to know of this order of rejection in July 1981 when Kale Singh the petitioner no. I was arrested by the Tahsil Authorities for the recovery of the tax which was the subject matter of appeal. It has also been averred that the application for restoration was also dismissed without giving an opportunity of hearing to the petitioners. Sub-section (5-A) of section 3 of the Act lays down that the Appellate Authority may pass such order in appeal as it thinks fit after giving reasonable opportunity of being heard to the appellant and shall send a copy of the order to the appellant. In this case, this was not done before passing the order of rejection dated 25-1-17. Rule 24 (1) of the Rules framed under the Act provides for preferring an appeal under Section 3 (5) of the Act by presenting a memorandum of appeal in duplicate to the Appellate Authority. The rules are silent as to what order is to be passed if the memorandum of appeal is not presented in duplicate. Besides rules 24 the only other provision which is available in connection with the hearing of an appeal is sub-section (5-A) which speaks of "giving reasonable opportunity of being heard'' to the appellant before passing an order in appeal. Rejection of an appeal, simply on the ground that the memorandum of appeal has not b;en presented in duplicate as required under rule 24 (1) without calling upon the appellant to make good this deficiency, does not show a sound exercise of judicial or quasi judicial discretion which vested in the appellate authority. If no other provision existed for the purpose, the Appellate Authority could have utilised the provision of sub-section (5-A) to provide an opportunity to the appellants to furnish one more copy of the memorandum of appeal to comply with rule 24 (1). In my view, in the instant case, rejection of the appeal on the aforesaid ground without 'giving reasonable opportunity of being heard" to the appellants was in contravention of the provisions of section 3 (5-A) of the Act. For these reasons, the orders dated 25-7-77 and 10-9-81 are vitiated and deserves to be , quashed.
(3.) THE prayer for quashing the order of assessment dated 26-3-77 in this writ petition is, in my opinion, not well founded. THE assessment order is under challenge in the appeal and its legality and propriety will be considered in the appeal itself. In the result the writ petition is allowed, to this extent that the orders of the appellate authority dated 25-7-77 and 10-9-81 are quashed and the appeal is sent back to the appellate authority for disposal according to law after giving reasonable opportunity of being heard to the appellants In the circumstances of the case, there will be no order as to costs. Petition allowed.;