Prakash Krishna, J. - (1.) THE petitioner, a proprietorship concern, registered under Section 8A of U.P. Trade Tax Act, is carrying on the business of kirana and dry fruits etc. Exparte assessment orders were passed under U.P. Trade Tax Act for the assessment years 2000 -01, 2001 -02 and 2002 -03 by the assessing authority. Applications to set aside the exparte assessment orders were dismissed. The matter ultimately travelled to the Tribunal in second appeals, being second appeal Nos. 262, 263 and 264 of 2004, for all three assessment years. The Tribunal by its common judgment and order dated 6 -1 -2005 allowed all the three appeals on the finding that the petitioner was prevented by sufficient cause and could not participate in the assessment proceedings. It consequently allowed the applications filed under Section 30 of the Act and set aside the exparte assessment orders on the finding that the petitioner could not appear in the assessment proceedings as well at the time of hearing of the applications for setting aside exparte assessment orders on the ground of his illness. The matter was restored back to the assessing authority with direction to reframe the assessment orders after giving opportunity of hearing to the petitioner. The petitioner, armed with the order of the Tribunal, approached the assessing authority with an application dated 11 -1 -2005 and submitted that in view of the fact that the assessment orders have been set aside by the Tribunal, the recovery citation issued earlier on the basis of ex parte orders may be withdrawn. The assessing authority issued order, withdrawing the recovery proceedings. Thereafter, the proceeding for framing fresh assessment order was initiated by issuing notice dated 2 -6 -2005, fixing 25 -6 -2005 for appearance of the petitioner. The said notice was served on 23 -6 -2005. On the date so fixed, an adjournment application was moved on 25 -6 -2005 on the ground that the petitioner wants to get his case transferred to another assessing authority. Hearing of the case, on the basis of the adjournment application, was adjourned. Thereafter number of dates were fixed, but the petitioner sought adjournments on the ground that he is seeking remedy for transfer of the case to another assessing authority. The Commissioner, Trade Tax rejected the transfer petition filed by the petitioner and this fact was communicated by the Joint Director (Sankhya) Trade Tax, Head Quarter by its letter dated 25 -8 -2005. Even then, the petitioner did not appear in response to the notice and sought adjournment on 31 -8 -2005. The assessing authority, faced with this situation, again framed the exparte assessment orders, all dated 3 -9 -2005 in respect of above three assessment years. Although the assessment orders are appealable but the present writ petition has been filed instead, solely on the ground that the impugned orders of assessment are barred by time in view of Section 21(5) of U.P. Trade Tax Act.
(2.) IN the counter affidavit filed on behalf of the respondents, it has been stated that the petitioner has deliberately concealed the material facts in the writ petition. The fact that an application was filed by the petitioner on 17 -1 -2005 praying for withdrawal of recovery certificate on the ground that his appeals have been allowed by the Tribunal and the matter has been remanded to the assessing authority has not been disputed. The respondents have come out with a case that along with the said application, an illegible and unattested copy of the order of the Tribunal was filed. The notice for reassessment, fixing 25 -6 -2005 was issued by the respondent No. 1 on 2 -6 -2005 which was served on the petitioner on 23 -6 -2005. On 25 -6 -2005, an adjournment application was filed before the assessing authority on the ground that he wants to get his case transferred to another assessing authority and the matter was adjourned. On 27 -6 -2005 another notice was issued to the petitioner directing him to submit the details of the steps taken for getting his case transferred, fixing 6 -7 -2005. None appeared on that date. Thereafter, the matter was taken up on 11 -7 -2005 and again a notice was issued for appearance, fixing 25 -7 -2005. On 25 -7 -2005, Subhas Chandra Gupta, authorised representative appeared and prayed for adjournment on the plea that he is taking steps to get the case transferred but could not produce any evidence to show that any such transfer application was filed by the petitioner. On the said date, an application (Annexure -CA 6) was filed stating that he has already applied for transfer of the case to the Commissioner, Trade Tax for transferring his case and requested that the assessing authority should extend full cooperation in transferring the cases. The assessing authority thus stayed his hands awaiting the disposal of the transfer application moved by the petitioner before the Commissioner, Trade Tax, U.P. Lucknow. Since no order regarding transfer of the case was produced by the petitioner, again a show cause notice dated 26 -8 -2005, fixing 31 -8 -2005, was issued requiring the petitioner to submit reply to the show cause notice issued earlier. On the said date i.e. on 31 -8 -2005, neither the petitioner nor any person on his behalf appeared in pursuance of the notice dated 26 -8 -2005. The respondent No. 1 received a communication letter dated 25 -8 -2005 informing that the transfer application filed by the petitioner has been rejected by the Commissioner, Trade Tax, U.P. Lucknow. On the very next date, the assessing authority received a letter of the petitioner under registered cover requesting the assessing authority not to pressurise him for hearing of the case. The said application was rejected by the assessing authority and thereafter the impugned assessment orders were passed. It has been pleaded that the writ petition is liable to be dismissed as the petitioner has concealed the material facts and has approached the Court with unclean hands and is not entitled to invoke extra ordinary discretionary jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner has been avoiding hearing of the case since 25 -6 -2005 till the impugned assessment orders were passed. In the supplementary affidavit filed by the petitioner, three letters of the respondent No. 1, written to the Collector, for withdrawal of the recovery for the relevant assessment years have been enclosed. In the rejoinder affidavit, the allegation that the petitioner concealed the material facts has been denied. However, the filing of the adjournment applications seeking adjournment of the case and transfer application etc. have not been denied. The plea of limitation has been sought to be reiterated on the ground that six months' period of limitation as provided under Section 21(5) of the Act will be applicable in the present case.
(3.) HEARD the learned Counsel for the parties and perused the record.;