ANSHUMAN SINGH, J.

This petition under article 226 of the Constitution of India is directed against issuance of a notice dated December 8, 1987, served on the petitioner on December 22, 1987, under section 10-B of the U. P. Sales Tax Act, 1948 (hereinafter referred to as "the Act"), for the assessment year 1981-82 for quashing the proceedings in pursuance of the aforesaid notice. In the instant case, counter and rejoinder affidavits have been exchanged between the parties. There is no private party to the writ petition. With the consent of the counsel for the parties, the petition is being disposed of finally at the admission stage itself as provided under second proviso to rule 2 of Chapter XXII of the Rules of the court. The petitioner No. 1 is a registered partnership firm of which petitioner No. 2 is one of the partners. The firm is registered under both the U. P. and Central Sales Tax Acts. The firm is carrying on the business of manufacture and sale of cotton cloth, niwar, etc. For the assessment year 1981-82, the assessee was assessed under the U. P. Sales Tax Act by the Sales Tax Officer, Sector IX, Kanpur, on January 30, 1984. It has been alleged that the entire turnover was disclosed by the assessee and after assessment proceedings the entire turnover was taxed by the assessment order mentioned above by the Sales Tax Officer. It has been alleged by the assessee that though no part of the turnover has escaped assessment yet the Deputy Commissioner (Executive), Sales Tax, Kanpur Range, Kanpur, respondent No. 2, issued the impugned notice on the ground that the petitioner has made supply of cotton rope to D. G. S. & D. , Kanpur, regarding which the sale has escaped assessment, hence assessment proceedings were initiated against the petitioner under section 10-B of the Act. A perusal of the impugned notice dated December 8, 1987, copy of which has been filed as annexure 2 to the writ petition, clearly reveals that the action has been initiated against the petitioner only on the ground that the turnover of supply made to D. G. S. & D. , Kanpur, has escaped assessment and no tax has been levied on the aforesaid turnover.

We have heard Sri Bharatji Agarwal, learned counsel appearing for the assessee and the learned Standing Counsel appearing for the Revenue. Learned counsel for the petitioner vehemently urged that assuming that the turnover on the supplies made to D. G. S. & D. , Kanpur, has escaped assessment, proceedings under section 10-B of the Act could not have been initiated and the same are void, illegal and without jurisdiction. Learned counsel submitted that assuming that if any part of the turnover of the assessee has escaped assessment then the only provision contained in the Sales Tax Act under which proceedings for reassessment of the escaped turnover could be initiated is under section 21 of the Act and no proceedings for the alleged escaped assessment could be initiated under section 10-B of the Act.

From the submission made on behalf of the counsel for the assessee, the only issue which emerges on the facts of the case in the instant petition is as to what is the provision under which proceedings for assessment of escaped turnover of the assessee can be initiated.

Before appreciating the contention raised on behalf of the assessee and recording any finding and expressing any option on the contention, it appears desirable to refer to the relevant provisions of the Act. Firstly, we would like to refer to the provision of section 10-B of the Act under which the impugned notice has been issued. It reads as under :

" Section 10-B : Revision by Commissioner of Sales Tax.- (1) The Commissioner of Sales Tax or such other officer not below the rank of Deputy Commissioner of Sales Tax as may be authorised in this behalf by the State Government by notification may call for and examine the record relating to any order (other than an order mentioned in section 10-A) passed by any officer sub-ordinate to him, for the

Click Here to Read the rest of this document