TMI Blog2006 (7) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment proceedings and, therefore, the petitioner filed one more writ petition bearing No. 462 of 1989 Manak Tala Chemicals (P) Ltd. v. State of U. P. [1991] UPTC 913 which was also allowed after holding that the assessing authority has no jurisdiction to sit in judgment over the grant of eligibility certificate granting exemption from payment of trade tax. 4. The petitioner again felt aggrieved when a notice under Section 21 of the Sales Tax Act dated March 22, 1993 was issued and received on March 30, 1993 fixing March 31, 1993 for appearance and hearing. This notice related to the assessment years 1984-85 and 1985-86. As per the averments made in the writ petition, the petitioner appeared before the assessing authority and apprised him that the notice has been issued beyond limitation which period has already expired but without giving any adjournment or considering the aforesaid objections, the assessing authority proceeded to make the assessment ex parte. The petitioner received the ex parte order of assessment for the year 1984-85 and 1985-86 in which it was for the first time mentioned that the Commissioner/Additional Commissioner, Sales Tax, U. P., Lucknow on March 29, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from February 19, 1991. The extended period of limitation was prescribed as eight years during which period before the proceedings could be initiated sanction or permission of the Commissioner was necessarily to be obtained. The retrospective operation of the period of limitation prescribed by Act No. 28 of 1991 became the subject-matter of challenge in Chopra Diesel Sparre v. State of U. P. [Writ Petition No. 1156 of 1992(M/B) decided on February 22, 1993-Allahabad High Court], wherein a division Bench of this Court declared that such amendment could not have effect with retrospective date, vide orders dated February 22, 1993. However, in a subsequent judgment pronounced by the apex court in the case of Additional Commissioner (Legal) v. Jyoti Traders reported in AIR 1999 SC 526 , the apex court upheld the said amendment. Thus the judgment of Chopra Diesel stands overruled. The admitted position, therefore, is that on relevant date, the limitation period of 4 years was prescribed under Section 21(2) for initiating the proceedings under Section 21(1) and in case the proceedings were to be initiated beyond the period of 4 years but within 8 years, then necessary sanction was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known to the assessee, before he finally forms his satisfaction and even if the Commissioner or the higher authority on his own reasons feels satisfied that it is just and expedient to reopen the assessment, it would still require that such reason must be made known to the dealer also so that before the assessment is reopened he may have an opportunity to satisfy the higher authority that the reasons assigned by the assessing authority are not relevant or they are incorrect or they do not make out a legal ground for reopening of the assessment and likewise if the Commissioner or the higher authority proposes to authorise the assessing authority for reopening the assessment on his own, then also reasons for such satisfaction have to be supplied to the dealer, so that he may have a say to convince the higher authority for not authorising the assessing officer for reopening the assessment. 12. Whether the Commissioner or the higher authority permits the assessing officer to proceed under the extended period of limitation either on his own or on the reason recorded by the assessing authority, in both cases, the dealer would have a right to put forward his defence for not reopening t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 16. The assessing authority, on one hand, has issued the notice under Section 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. 17. It may be that in a case when limitation is to expire, the assessing authority has to complete the assessment before expiry of the limitation but where a notice under Section 21(1) has been issued without authority, such assessment made shall be wholly without jurisdiction and absolutely illegal and without authority. 18. On merits, the claim of the petitioner for exemption on both items washing soap and detergent in view of the eligibil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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