The petitioner challenges the legality of proceedings under section 21 of the U.P. Sales Tax Act which are being taken against him for the assessment year 1959-60.

The petitioner, which is a private limited company carrying on business as a flour mill, was assessed to sales tax on the turnover of the assessment year 1959-60.

Subsequently a notice under section 21 of the Act was served on the petitioner on 28th March, 1964 (although the petitioner says the service was effected on 30th March, 1964). The petitioner applied for inspection of the records on 20th March, 1965, but as the Sales Tax Officer was out of station no order was passed on the application. On 6th June, 1964, the petitioner received a notice requiring it to produce the relevant account books. On 30th June, 1964, the Accountant of the petitioner appeared before the Sales Tax Officer and raised a preliminary objection to the effect that the notice under section 21 was vague and did not disclose the material upon which the Sales Tax Officer had reason to believe that any part of the turnover had escaped assessment. According to the counter-affidavit, the material upon which the notice under section 21 had been issued was disclosed to the Accountant. It appears that the Sales Tax Officer of the Special Investigation Branch, Varanasi, was meanwhile, engaged in investigating the affairs of the petitioner for the purposes of the U.P. Sales Tax Act and from time to time directed the petitioner to appear with its account books. One such hearing took place on 17th February, 1965, when the account books for the financial year 1959-60 were produced. The Sales Tax Officer, who had issued the notice under section 21, served a notice upon the petitioner requiring it to appear on 11th March, 1965, before him and with the notice enclosed detailed material pointing to certain discrepancies in the accounts maintained by the petitioner. The petitioner appeared on 11th March, 1965, and subsequently filed a written objection on 15th March, 1965, contending that the proceedings were barred by limitation. Various other objections were taken. Upon a request in this behalf by the petitioner, the Sales Tax Officer appointed 23rd March, 1965, for the filing of written arguments. Then on 25th March, 1965, the instant petition for prohibition and certiorari was filed.

The only ground raised by the petitioner before me is that the Sales Tax Officer had no material upon which he could have reason to believe that the turnover of the petitioner, or any part of it, had escaped assessment for the year 1960-61.

Section 21 of the U.P. Sales Tax Act reads :

"If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year, the assessing authority may, after issuing notice to the dealer, and making such enquiry as may be necessary, assess or reassess him to tax ................."

Before the assessing authority can exercise his jurisdiction under section 21, he must have reason to believe that the whole or any part of the turnover of the dealer has escaped assessment to tax. In cases under the Income-tax Act, it is well-settled that when an Income-tax Officer initiates proceedings for the assessment of escaped income on the basis that he has reason to believe that income has escaped assessment, he must have material in his possession on the basis of which he comes to that belief. He cannot proceed from mere suspicion. He must bana fide and honestly believe that income has escaped assessment, and the belief must be based upon reasons. He must have, as Das Gupta, J., observed, delivering the majority judgment of the Supreme Court in Calcutta Discount Co. v. Commissioner of Income-tax ([1961] 41 I.T.R. 191; A.I.R. 1961 S.C. 372, 377.),

"some prima facie grounds for thinking that there had been some non-disclosure of material facts."

And employing the language of Shah, J., in the same case (Ibid. 38