TMI Blog2003 (12) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... deducting labour charges and the amount of security the net amount received by the petitioner comes to Rs. 10,21,141. It is alleged that out of this amount the petitioner had purchased iron, steel, cement, grits and bricks of Rs. 10,07,496 from registered dealers within the State and the said material was used by the petitioner in construction work. The Trade Tax Officer, now designated as Assistant Commissioner, Trade Tax, Khand-2, Banda, after verifying the list of purchases from the original bills produced during the assessment proceedings granted exemption from payment of tax on the aforesaid amount of Rs. 10,07,496 and estimated the purchase of sand and morum from unregistered dealers at Rs. 18,000 and imposed tax on the said amount at Rs. 1,350. Since the various departments while making the payments to the petitioner had deducted trade tax to the tune of Rs. 36,048 as such the Trade Tax Officer vide his order dated December 4, 1999 ordered that after adjusting the tax of Rs. 1,350 from the amount which had been deducted from the bills of the petitioner the balance be refunded to the petitioner. True copy of the assessment order is annexure 1 to the writ petition. 4.. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the order dated March 13, 2003 on August 5, 2003 and the case was reopened. Thereafter the case was fixed for September 2, 2003 but on that date the petitioner could not appear before the respondent No. 1 and the case was fixed for September 10, 2003 vide annexure 5 to the writ petition. In that notice it has been stated that the petitioner had not submitted the papers regarding the purchases. It is alleged by the petitioner that the notice dated February 15, 2003 under section 21 of the Act is illegal as it does not contain reasons, particularly since the assessing officer had perused all the relevant documents and that there was no fresh material for issuing fresh notice. It is also alleged that no reasons had been recorded in the notice dated February 13, 2003 for reopening the assessment and there was only change of opinion. 7.. A counter-affidavit has been filed by the respondent No. 1 and we have perused the same. In paragraph 6 it is stated that the petitioner did not appear in response to the notice under section 21(2) on February 15, 2003 and did not produce the bills, vouchers and account books in support of the purchases. Hence the ex parte order dated March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act. In our opinion when permission is granted by the Commissioner under the proviso to section 21(2) and notice is issued to the dealer he must challenge the same at the earliest, and at any event before the assessment order is passed, otherwise it would put a premium on dilatory tactics. If the assessment order is passed the petitioner should be relegated to his alternative remedy of appeal under section 9. 12.. Apart from the above, on merits also the petitioner has no case. Section 21(1) itself states that if the assessing authority has reason to believe that the whole or any part of the turnover had escaped assessment of tax or was under-assessed or was assessed at a lower rate of tax or any deduction or exemption has been wrongly allowed the assessing authority may, after issuing notice to the dealer make reassessment. Thus section 21 itself states that if the deduction was wrongly allowed proceedings under section 21 can be taken. In the present case a perusal of the order dated January 16, 2003 shows that the respondent No. 2 was of the opinion that the exemption has been granted wrongly and necessary papers had not been submitted or were not on record. Hence in our o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered view on the facts and circumstances of the case, it is not a fit case for interference under article 226 of the Constitution of India." 16.. In Kalpana Kala Kendra v. Sales Tax Officer [1989] 75 STC 198; 1989 UPTC 597 this Court observed: "Section 21 of the Act is based upon the theory that the taxes must be paid by the assessee in correct sum and likewise it must be collected by the statutory machinery. The escapement from assessment whether it results on account of a concealment practised or fraud played by the assessee or as a result of negligence or ignorance of the assessing authority, in our opinion, is of no consequence, provided the action to reopen the assessment is otherwise justified and the assessing officer is not acting arbitrarily or in a capricious manner. The escapement of assessment contemplated under that section may be due to various reasons. The term 'turnover has escaped assessment to tax', which includes under-assessment, may as well be a result of lack of care on the part of the assessing officer or by reason of inadvertence on his part. Section 21 does not prohibit obtaining of information from the investigation of material on the record of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wider than that of section 147(a) of the Income-tax Act, 1961. The escapement envisaged by section 21 of the U.P. Trade Tax Act, 1948 need not necessarily spring from a source extraneous to the original record. Action under section 21 can be taken on the basis of material already on record at the time of the original assessment, if the escapement of assessment to tax was a result of lack of care or inadvertence on the part of the assessing officer. 20.. In the present case we are of the opinion that there was material before the respondent-authorities prima facie showing that there was both concealment by the petitioner as well as negligence and ignorance on the part of the assessing officer, as already discussed above. 21.. In the present case there was certainly lack of care on the part of the assessing officer who framed the original assessment as he did not verify the purchases made by the petitioner and he did not look into the contract document and appears to have wrongly granted exemption. Hence there is no illegality in the impugned order and notice. 22.. For the reasons given above we find no merit in this petition and it is dismissed. Petition dismissed. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
