Judgment:
R.K. Agrawal, J.
1. S.T.R. No. 727 of 1991 has been filed against the order dated March 26, 1991, passed by the Sales Tax Tribunal, Moradabad Bench-I, Moradabad, in Second Appeal No. 154 of 1990 (assessment year 1982-83) U.P. and five other revisions bearing Sales Tax Revision Nos. 728 to 732 of 1991 have also been filed by the same applicant against common order dated March 26, 1991 passed by the Sales Tax Tribunal, Moradabad Bench-I, Moradabad, before this Court relating to the assessment years 1982-83 Central, 1983-84 U.P. and Central and 1984-85 U.P. and Central. Since Sales Tax Revision No. 727 of 1991 was not listed for hearing before the court today, the applicant Prem Chand Netaji who is the sole proprietor and is appearing in person has made a request to get the said revision also and be heard and decided today to which the learned Standing Counsel has no objection. The file of Sales Tax Revision No. 727 of 1991 has been summoned from the office and is being heard and decided along with the Sales Tax Revisions Nos. 728 of 1991 to 732 of 1991.
2. All these six revisions have been filed by Prem Chand Suresh Chand, Arhati, Jahangirabad, district Bulandshahr, against a common order dated March 26, 1991 passed by the Sales Tax Tribunal, Moradabad Bench-I, Moradabad, in Second Appeal Nos. 154 and 155 of 1990 relating to the assessment year 1982-83 U.P. and Central, Second Appeal Nos. 156 and 157 of 1990 relating to the assessment year 1983-84 U.P. and Central and Second Appeal Nos. 158 and 159 of 1990 relating to the assessment year 1984-85 U.P. and Central.
3. The facts of the case in brief are that the applicant which is the sole proprietorship concern of Sri Prem Chand Netaji had been assessed to tax for the assessment years 1982-83, 1983-84 and 1984-85 by the Sales Tax Officer, Sikandrabad, both under the U.P. Sales Tax Act, 1948 and Central Sales Tax Act, 1956. It appears that for the assessment year 1982-83 U.P. and Central, the original assessment orders were passed by the assessing authority. However, proceeding under Section 21 of the Act was initiated and reassessment orders were again passed. In respect of the assessment years 1983-84 and 1984-85 both under the U.P. Sales Tax Act and Central Sales Tax Act regular assessment orders have been passed. All the six orders were challenged by the applicant before the Assistant Commissioner (Judicial), Bulandshahr. The Assistant Commissioner (Judicial) after setting aside all the six assessment orders had directed for making fresh assessment. The ground of objection which was raised on behalf of the applicant was that the notices under Section 21 of the Act for assessment year 1982-83, both under the U.P. Sales Tax Act and Central Sales Tax Act as also the notices issued under Section 7(3) of the Act, for the assessment year 1983-84, U.P. and Central and assessment year 1984-85, U.P. and Central have not been served upon the applicant within the period of limitation prescribed under the Act. The Assistant Commissioner (Judicial), however, did not accept the plea of limitation but remanded the matter to the assessing authority to make fresh assessment after giving an opportunity of hearing to the applicant. Feeling aggrieved by the said orders, the applicant preferred second appeals under Section 10 of the Act before the Tribunal. The Tribunal by the impugned order has dismissed all the appeals.
4. It may be mentioned here that the present revisions have been filed on behalf of the applicant by Sri Rakesh Ranjan Agrawal, Advocate. However, an application was filed on September 6, 2000 by Sri Prem Chand Netaji, who claims himself to be the proprietor of the applicant, in which it has been stated that he wants to withdraw the power of Sri Rakesh Ranjan Agrawal, Advocate, and to argue all the revisions personally. Today when the matter was listed before the court Sri Prem Chand Netaji had appeared in person and submitted that he be permitted to argue all the revisions personally. Since Sri Rakesh Ranjan Agrawal, Advocate, has sent his illness slip today and Sri Prem Chand Netaji is personally present in the court to argue the matters, the court is permitting Sri Prem Chand Netaji to argue the revisions. Sri Prem Chand Netaji then submitted that he had not instructed Sri Rakesh Ranjan Agrawal, Advocate, to file these six revisions before this Court. However, after seeing the signature on the vakalatnama filed along with the said revisions, he admitted the signature to be his. Therefore, he was permitted to argue the revisions in person.
5. The applicant had raised a preliminary objection that in view of the stay order passed by the honourable Supreme Court on Augusts, 1994 in Special Leave to Appeal (Civil) No. 5917-18 of 1994 staying the proceedings against the petitioner the court ought to have stayed the proceedings in the present revisions. He further submitted that subsequently the stay order was confirmed by the honourable Supreme Court while passing the order on March 27, 1995. The applicant further submitted that the honourable Supreme Court vide order dated August 19, 1992 passed in Special Leave Petition (Civil) Nos. 4234-40 of 1992 had while disposing of the appeal directed the applicant to file appeals within four weeks which was to be decided after condoning the delay in the filing of the appeals. The applicant submitted that in view of the orders of the honourable Supreme Court referred to above the Assistant Commissioner (Judicial) was to decide the appeal himself and not to remand the matter.
6. Before deciding the preliminary objection raised by the applicant it is necessary to reproduce the various orders passed by the honourable Supreme Court in full :
'Petition for Special Leave to Appeal (Civil) No. 5917-18/94 (from the judgment and order dated September 22, 1993 of the High Court of Allahabad in Sales Tax Revision Nos. 460 and 461 of 1993).
PREM CHAND SURESH CHAND NETAJI ABHATI .... Petitioner.VersusCOMMR., SALES TAX, U.P., LUCKNOW .... Respondent.(With application for ex parte stay and exam, from filing) Date 8-8-1994.
These petitions were called on for hearing to
CORAM :
Honourable Mr. Justice J.S. Verma
Honourable Mr. Justice K.S. Paripoornan
For the petitioner(s) Mr. Shiva Pujan Singh, Advocate.
Upon hearing counsel the court made the following :
Order
Learned counsel for the petitioner submits with reference to the orders relating to the assessment years 1981-82 to 1986-87 which have now been filed, there was no subsisting assessment to give time to demand from the petitioner.
Issue notice on the special leave petitions as well as applications for stay. Meanwhile, proceedings against the petitioner shall remain stayed. Sd/- Sd/-(Vimal Jaitley) (Vinod Kumar)Court Master Court Master.'
7. The aforesaid matter again came up for hearing before the honourable Supreme Court on March 27, 1995 wherein the honourable Supreme Court had dismissed the special leave petitions. The complete order dated March 27, 1995 is reproduced below :
'Special Leave to Appeal (Civil) Nos. 5917-18 of 1994 (from the judgment and order dated September 22, 1993 of the High Court of Allahabad in Sales Tax Revision Nos, 460-61 of 1993.)
PREM CHAND SURESH CHAND NETAJI ARHATI .... Petitioner.VersusCOMMR., SALES TAX, U.P., LUCKNOW .... Respondent.(With application for stay and exam. from filing English translation).
Date 27-3-1995
This/these petition was/were called on for hearing today.
CORAM :
Honourable Mr. Justice J.S. Verma
Honourable Mr. Justice S.P. Bharucha.
For the petitioner (so-in-person).
Upon hearing counsel the court made the following :
ORDER
Special leave petitions are dismissed. Sd/- Sd/-(Vimal Jaitley) (Vinod Kumar)Court Master Court Master.'
8. The aforesaid two orders have been reproduced verbatim from annexure Nos. 4 and 5 filed along with Application No. 73042 of 2000 filed in S.T.R. No. 727 of 1991 which is duly supported by the affidavit of Prem Chand Netaji. Thus the contention of the applicant that the interim stay order passed by the honourable Supreme Court had been confirmed on March 27, 1995 is not correct as the interim order granted on August 8, 1994 by the honourable Supreme Court reproduced above stood discharged when the special leave petitions were dismissed by the honourable Supreme Court on March 27, 1995.
9. So far as the order dated August 19, 1992, passed by the honourable Supreme Court in Special Leave Petition (Civil) Nos. 4234-40 of 1992 is concerned, the honourable Supreme Court had only disposed of the appeals with certain directions. The operative portion of the order dated August 19, 1992 passed by the honourable Supreme Court is reproduced below :
'We, therefore, dismiss these appeals. We however, that having regard to the fact that he approached the High Court by way of writ petition, would be given an opportunity to contest the merits of the impugned orders in appeal preferred under the Act. The time-limit for preferring these appeals has now expired. In the special circumstances of this case, we direct that the appeals, if filed within four weeks from today, may be taken on record and disposed of by the Appellate Assistant Commissioner or by the concerned appellate authority after condoning the delay in the filing of the appeals. It will also be open to the appellant to apply for interim stay of collection of tax pending disposal of appeals which may be disposed of on merits expeditiously. The appeals pending before the Tribunal and the revisions pending in the High Court may also be disposed of as expeditiously as possible since a large number of years are involved and huge amount of tax has been demanded from the appellant.
These appeals are disposed of as indicated above. There will be no order as to costs.
Sd/-
(S. Ranganathan)
Sd/-
(V. Ramaswami)
Sd/-
(B.P. Jeevan Reddy)'.
New Delhi,
August 19, 1992.
At present there is no order staying the proceedings in these revisions. Therefore, the preliminary objection raised by the applicant is rejected.
10. So far as the merit is concerned, the applicant submitted that for the assessment year 1982-83 the notice under Section 21 of the Act was not served upon the applicant within limitation and, therefore, the proceedings could not have been initiated and the assessment orders passed thereon is wholly illegal and without jurisdiction. It may be mentioned here that the notice under Section 21 of the aforesaid Act was served by way of affixation on March 23, 1987. The applicant appeared before the assessing authority and filed his objection on March 31, 1987 in which he had admitted about the service of the notice. Thus the plea of the applicant that no notice was served within limitation cannot be accepted.
11. So far as the assessment years 1983-84 and 1984-85 are concerned, the assessment proceedings were completed ex parte and there is dispute about the service of notice upon the applicant. The Tribunal relied upon a Full Bench decision of this Court in the case of Commissioner of Sales Tax v. Mukti Nath Singh Ram Lakhan Singh reported in [1979] 44 STC 381 ; 1979 UPTC 1077, and had held that non-service of notice for initiating and completing the regular assessment proceedings under Section 7(3) of the Act are only procedural irregularities which can be set right by setting aside the assessment orders and directing the parties to be given an opportunity of hearing. Recently the honourable Supreme Court in the case of Commissioner of Sales Tax, U.P. v. R.P. Dixit Saghidar reported in [2002] 127 STC 337 ; (2000) 7 JT SC 547 has also held that where the principles of natural justice are stated to have been violated it is open to the appellate authority in appropriate cases to set aside the order and require the assessing officer to decide the cases de novo. This is precisely what has been directed by the Assistant Commissioner (Judicial) and confirmed by the Tribunal in the present cases. Thus there is no illegality in the order of the Tribunal. No other point has been pressed. I do not find any force in all these revisions. The revisions lack merit and are dismissed. However, there shall be no order as to costs.