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2006 (7) TMI 620 - HC - VAT and Sales TaxOpportunity of being heard - Notice for reassessment issued u/s 21(2) of U.P. Trade Tax Act - barred by limitation - Eligibility certificate - payment of trade tax - new unit in pursuance of the scheme of exemption notified by the State Government - claim for exemption on both items "washing soap" and "detergent" - ex parte order of assessment - HELD THAT:- The mere fact that the notice was served on the petitioner on March 30, 1993 would not cure the inherent lack of the authority of the assessing authority to issue notice without sanction of the Commissioner or the Additional Commissioner. It is also to be taken note of that it has not been brought on record nor it has been disclosed that on what date the assessing authority has sent its request for approval to the Commissioner, i.e., whether he has sent the request before issuance of the notice on March 22, 1993 or after issuance of the notice but since the approval admittedly has been granted on March 29, 1993, i.e., after issuance of the notice, it is hardly relevant as to when such a request has been made by the assessing authority. The assessing authority, on one hand, has issued the notice u/s 21 without any authority and, on the other hand, has passed an ex parte order of reassessment though the notice was served only on March 30, 1993 upon the petitioner apparently because thereafter the matter would have become barred by limitation, after March 31, 1993. Claim of the petitioner for exemption on both items "washing soap" and "detergent" in view of the eligibility certificate granted u/s 4-A also stands established in view of the fact that the assessing authority in his ex parte assessment on March 31, 1993 did not give benefit of such exemption to the "detergent cakes" holding that the eligibility certificate was confined only to "washing soap" the benefit of which would not extend to "detergent cake", whereas the petitioner has brought on record an order passed by the Commissioner u/s 4-A(3) of the Act which shows that the proceedings for cancellation of eligibility certificate were initiated on the same ground but the Commissioner vide his order dated September 7, 1994 found that the petitioner was entitled to exemption on both items, i.e., washing soap and detergents under the same eligibility certificate. It is, therefore, established beyond doubt even on merits, that the assessment for the years 1984-85 and 1985-86 under the U.P. Sales Tax Act, 1948 and Central Sales Tax Act, 1956 was rightly made and there was no occasion for issuing notice u/s 21 and the issuance of notice u/s 21 was, thus, bad besides being without jurisdiction and authority, in view of the findings recorded. The subsequent proceedings taken as a result of the aforesaid notice resulting into ex parte order/assessment are also without jurisdiction and cannot be sustained. Thus, we quash the impugned order of sanction passed by the Additional Commissioner on March 29, 1993 and also the notice issued u/s 21 dated March 22, 1993 and consequently also the ex parte assessment order dated March 31, 1993 passed on the basis of the aforesaid notice. The writ petition is allowed.
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