R.K. Gulati, Mam Chandra Agarwal, J. - (1.) BY this petition under Article 226 of the Constitution of India, the petitioners challenge the proceedings for the recovery of sales tax dues of the so called firm M/s. R.K. Traders, Kabrai, District -Hamirpur. The dues are being sought to be recovered from the petitioners on the ground that they purport to be the partners in the said firm. According to the respondents the signatures of the petitioners appear on Form 14 for obtaining registration of the said firm under the U.P. Sales Tax Act. The contention of the petitioners has been that they did not sign any such form and their signatures have been forged. They earlier came to this court in Writ Petition No. Nil of 1992 Smt. Prem Rani and others v. Sales Tax Officer and others, which was disposed of by a Division Bench of this Court, by order dated 30 -3 -1992, with the following directions: However, on the facts of this case we feel that an enquiry be conducted without prejudice to the rights of the petitioners before the proper authority for getting the relief pertaining to forgery of signatures, if any. In this connection since the petitioners have already moved an application (annexure 5 of the petition) as aforesaid, we direct respondent No. 1 to conclude the enquiry after recording a finding whether petitioners were partners of the concerned Firm or not and whether the petitioners' signatures were forged. The enquiry will be made tentative for the purpose of satisfying prima facie case raised by the petitioners after affording opportunity to petitioners. Meanwhile the recovery proceedings as against the petitioners in pursuance of the citations (annexures 1, 2 and 3 of the petition) shall be kept in abeyance until conclusion of the said enquiry in accordance with law. Respondent No. 1 is further directed to conclude the said enquiry expeditiously. However, in case it is found that the signatures in question are forged, the said authority will record such finding and then the recovery proceedings as against the petitioners shall stand discharged. But in case it is found that the signatures are not forged, it will be open to respondent -authority to proceed with the recovery proceedings. With the aforesaid observations, the present writ petition is disposed of finally. On the said directions, the Assessing Officer procured the opinion of an hand writing expert and then issued a show cause notice to the petitioners who submitted a detailed reply. The Assessing Officer however, did not pass any order holding the petitioners to be partners in the said firm and liable to pay the sales tax dues thereof and revived the recovery proceedings of the sales tax dues. The petitioners have again come to this Court and filed the present writ petition asserting again that they are not partners in the said firm and their signatures have been forged. We have heard Sri Shashi Kant, learned counsel for the petitioners and Sri U.K. Pandey learned Standing Counsel for the respondents.
(2.) WHEN the petitioners challenged their liability in respect of the sales tax dues of the aforesaid firm by alleging that they had no concern with the firm and their signatures, if any, had been forged, it was the legal duty of the assessing officer to enquire into the matter and pass an order, which could be appealed, if necessary by the aggrieved persons under Section 9 of the Act. That was the intention of this Court when the order dated 30 -3 -1992 was passed. In compliance with the said order, the assessing officer merely obtained a report from some hand writing expert but has not concluded the enquiry by passing a judicial order. The result is that the petitioners are deprived of challenging the views of the assessing officer before the appropriate forum. Whether the petitioners are partners in the firm and whether their signatures were forged are questions of fact, which could not be agitated in writ jurisdiction. Therefore, it is the assessing officer who has to determine this question and his determination is subject to the provisions of appeal and revision, as contained in the Act. Since the assessing officer has not completed the exercise that was necessary under the law and was required to be performed in compliance with the order of this Court dated 30 -3 -1992, the proceedings for recovery against the petitioners are irregular and deserve to be kept in abeyance till the assessing officer makes an order, as pointed out above. The writ petition is, therefore, partly allowed and the assessing officer is directed to pass a proper order, as indicated above, after giving the petitioners a proper opportunity of hearing. Till such order is passed, the proceedings for the recovery of sales tax dues of M/s. Kumar Traders initiated against the petitioners will remain in abeyance. Parties will bear their own costs.;