R.K.AGRAWAL, J. - (1.) BY means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s Ansal Papers, seeks the following reliefs: i) issue a writ, order or direction in the nature of certiorari to quash the impugned notice dated 17.4.1993 issued by the respondent Nos. 2 under Section 15A(1)(1) of the Act (Annexure 4 to the writ petition); ii) issue a writ, order or direction in the nature of mandamus commanding the respondent No. 2 not to proceed further and not to initiate any penalty proceedings, i.e. not to pass any penalty order in pursuance of the impugned notice dated 17.4.1993. iii) issue such other and further writ, order or direction which this Hon'ble Court may deem tit and proper in the nature and circumstances of the present case. iv) Award costs of the petition to the petitioner.
(2.) BRIEFLY stated the facts giving rise to the present writ petition are as follows: According to the petitioner it is a registered firm and is engaged in the business of sale of papers etc. It is a registered dealer under provisions of U.P. Trade Tax Act, 1948 (hereinafter referred to as the U.P. Act) as well as the Central Sales Tux Act, 1956 (hereinafter referred to as the Central Act). For the assessment year 1982 -83 the Assessing Authority under the U.P. Sales Tax Act had accepted the books of account and a tax liability for a sum of Rs. 7,66,724.80 was fixed upon the petitioner. Subsequently proceedings under Section 21 of the U.P. Act were initialed and the Assessing Authority Vide order dated 28th September, 1987 had fixed the tax liability to the tune of Rs. 1,02,881.12. Against the order dated 28th September, 1987 the petitioner preferred an application under Section 30 of the U.P. Act, The matter was reopened and the Assessing Authority vide order dated 15th April, 1988 had raised a fresh demand of Rs. 4,115/ -. Feeling aggrieved by the order dated 15th April, 1988 the petitioner preferred an appeal under Section 9 of the U.P. Act before the Assistant Commissioner (Judicial) Sales Tax, Bulandshahr who vide order dated 4th March, 1989 had dismissed the appeal. The Sales Tax Officer, Sikandrabad -respondent No. 2, who was the Assessing Authority of the petitioner, had issued a notice under Section 15A(1)(1) of the U.P. Act calling upon the petitioner to show cause as to why penalty be not imposed in respect of the transactions of sale against the Form -3B made to M/s Sunil Paper Convertor, Kanpur as the said Form -3B issued by M/s Sunil Paper Convenor, Kanpur was fake. The notice dated 17th April, 1993 issued under Section 15A(1)(1) of the U.P. Act is under challenge in the present writ petition on the ground no tax liability has been fixed upon the petitioner in respect of the transactions of sale against Form -3B made to M/s Sunil Paper Convertor, Kanpur either in the Original assessment order or the reassessment order passed under Section 21 read with Section 30 of the U.P. Act, the Sales Tax Officer, Sikandrabad -respondent No. 2 has no jurisdiction to initiate penalty proceedings. Further a plea of limitation has also been raised on the ground that notice in question has been issued after a gap of about 10 years from the end of assessment year 1982 -83. On merits it has been stated that Form 3B submitted by the petitioner had been duly examined at the time of original assessment proceedings as well as reassessment proceedings and therefore, there is no liability of penalty. In the counter affidavit filed by A.H. Sheikh, Sales Tax Officer Sikandrabad -respondent No. 2 it has been stated that as the petitioner had taken benefit of tax by filing fake Form 3B which has not been issued to M/s Sunil Paper Convenor, Kanpur the penalty proceedings under Section 15A(1)(1) of the U.P. Act has rightly been initiated. It has also been stated that said Form 3B had not been issued by the Department and therefore, the question of taking the benefit of the same does not arise. The plea of limitation has also been repelled.
(3.) IN the rejoinder affidavit filed by the petitioner the averments made in the counter affidavit have been denied and the pleas taken in the writ petition have been reiterated. It has further been stated that the petitioner cannot be held liable for the Form 3B submitted by the purchasing dealer M/s Sunil Paper Convertor, Kanpur as the same has been accepted in the assessment proceedings after due verification.;