- (1.) THE petitioner - a Co-Operative Society - registered under the U. P. and Central Sales Tax Act, inter alia, seeks quashing of the impugned notice dated November 2, 1991, issued under section 21 for the assessment year 1979-80 under the U. P. Sales Tax Act, 1948 (annexure 6 to the writ petition ).
(2.) THE facts, in brief, are that the Sales Tax Officer passed an assessment order for the assessment year 1978-79 which according to the petitioner was ex parte, on November 21, 1983. When an application under section 30 for setting aside the same was dismissed, the petitioner filed an appeal before the Assistant Commissioner (Judicial) who allowed the appeal and remanded the case to the assessing authority for passing an order afresh giving an opportunity of being heard to the petitioner. Pursuant to the remand order, the assessing authority by an order dated August 21, 1989, passed under section 9 (2) of the Central Sales Tax Act, 1956 determined the total turnover of staple fiber as well as cotton yarn sold against from "c" and without "c" at Rs. 47,31,460 and imposed Central sales tax at Rs. 3,32,629 (see annexure I) which was challenged in appeal by the petitioner. THE Assistant Commissioner (Judicial) by his order dated January 9, 1990 partly allowed the appeal and granted the relief to the extent of Rs. 2,86,000 by deleting the turnover of staple fiber which was assessed by the Sales Tax Officer at the rate of 10 per cent (see annexure 2 ). The Assistant Commissioner (Judicial) while deciding the appeal observed in the body of the judgment that the petitioner had obtained these goods during the period from June 9, 1979 to June 15, 1979 and these goods form part of the closing stock as on June 30, 1978. The Assistant Commissioner (Judicial) further held that such stock could have been sold having obtained the permission of the Textile Commissioner which was obtained only on September 12, 1979. The appellate authority, therefore, held that the goods had been transferred by way of stock transfer after having obtained the permission from the Textile Commissioner during the assessment year 1979-80. Having so found, the Assistant Commissioner (Judicial) made an observation that the Sales Tax Officer, if he so desires, could take the proceedings under section 21 (7) of the U. P. Sales Tax Act (now the Trade Tax Act) (hereinafter referred to as "the Act" ). Fortified by the order of the Assistant Commissioner (Judicial), the Sales Tax Officer issued a notice under section 21 (7) for the assessment year 1979-80 on January 23, 1991 to the petitioner (see annexure 3 ).
(3.) THE petitioner then filed a reply stating that the assessment proceedings for the assessment year 1979-80 had become barred by time and no turnover for that year escaped assessment to tax. It was also stated that section 21 (7) is not applicable on the facts and circumstances of the case. Without paying any heed to such objection of the petitioner, the assessing authority issued a notice calling upon the petitioner to file a reply on the merits as to why Central sales tax be not levied for the assessment year 1979-80 on the stock transfer of the goods. THE petitioner reiterated that proceedings under section 21 (7) of the Act were barred by limitation. The assessing authority, however, stuck to the notice issued under section 21 (7) and, therefore, the petitioner filed this writ petition praying : (i) that section 21 (7) of the Act be declared invalid and that impugned notice issued under section 21 (7) - annexure 6 to the writ petition for the assessment year 1979-80, being barred by limitation be quashed. In the counter-affidavit filed for the respondent, it is denied that the proceedings under section 21 (7) are barred by limitation.;