Musheer Ahmad vs State of U.P. and Others

By means of the present writ petition the petitioner has sought the following relief:

(i) Issue a suitable writ, order or direction in the nature of certiorari quashing the notice dated 06.07.2006 (contained as annexure No. 1 to this writ petition) issued by Trade Tax Officer, Trade Tax Sahayta Kendra, Naubatpur, Chandauli i.e. the respondent No. 4.

(ii) Issue a suitable writ, order or direction in the nature of mandamus commanding the respondents to release the truck No. GJ-18 T/9381 along with the goods loaded thereon and issue transit pass for the same goods.

(iii) Issue a suitable writ, order or direction in the nature of mandamus commanding the respondent No. 3 to provide the copy of trip sheet/ transit pass No. 2044 dated 07.12.2005.

(iv) Issue a suitable writ, order or direction in the nature of certiorari quashing the order of assessment and penalty both dated 31.05.2006 (contained as annexure Nos. 3 and 4 to this writ petition) passed by Assistant Commissioner, Trade TAx, Trade Tax Sahayta Kendra, Naubatpur, Chandauli in respect of the transit pass/ trip sheet No. 2044 dated 07.12.2005.

(v) Issue any other writ, order or direction which this Hon''ble High Court may deem fit and proper under the facts and circumstances of the case.

(vi) Award cost of the petition to the petitioner.

The facts of the case lies in a narrow compass. The petitioner''s vehicle is being taken on hire by various transporters for the transshipment of goods from one place to another. During the course of transshipment of goods on 06.07.2006 when the vehicle came at the Entry Check Post of the State of U.P. i.e. the Trade Tax Sahayta Kendra, Naubatpur, the said vehicle was stopped by the Assistant Commissioner, Trade Tax, Trade Tax Sahayta Kendra, Naubatpur, Chandauli and the detention memo dated 06.07.2006 in the name of the driver of the vehicle was issued. In the said detention memo, it has been stated that certain transshipment of goods have not been got cancelled at the Exit Check Post. 3.

The contention of learned Counsel for the petitioner is that the notice does not contain the date of order of assessment and penalty and the petitioner has not been served with any notice. The order of assessment and penalty has been passed ex-parte in a mechanical manner in a printed proforma without giving any notice and opportunity of hearing to the petitioner.

Challenging the order of detention of vehicle and the order of assessment and penalty directing the petitioner to furnish the penalty, present writ petition has been filed. 5.

On the application for granting of interim relief, the Court released the vehicle on the condition that the petitioner shall furnish security, other than cash or bank guarantee to the satisfaction of respondent No. 3 for the amount of tax (excluding penalty) imposed by the order dated 8.3.2006, Annexures 2 and 3 to this petition, the vehicle No. G.J.-18T/9381 was ordered to be released. 6.

It appears that thereafter assessment proceedings were initiated against the petitioner and ex-parte assessment and penalty orders have been passed on 31.05.2006. The said assessment order was also the subject matter of challenge in the writ petition.

It has been stated at bar that on identical facts, several other writ petitions such as writ petitions No. 1239, 1287, 1289, 1290, 1291, 1292, 1293, 1294, 1295, 1308 and 1309 of 2006 were filed before this Court and have been allowed by the judgment dated 30.8.2006. The operative portion of the judgment is reproduced:

In view of the foregoing discussions, the writ petitions succeed and are followed. The assessment order and the penalty order filed along with the counter affidavit on the basis of which the recovery is being pressed from the petitioner, are quashed. However, it will be open to the respondent No. 3 to pass a fresh order in accordance with law. As the assessment order and penalty order have been quashed, the detention of vehicle is also set aside and the respondent No. 3 is directed to release the vehicle forthwith. If the respondent No. 3 decides to take proceeding afresh, he shall sent notice on the address of the petitioner as given in the writ petition which would be treated as correct address.

Learned Standing counsel for the department joins the prayer of learned Counsel for the petitioner that the present writ petition may also be decided on the same terms and conditions.

We, therefore, dispose of the present writ petition on the same terms and conditions of the earlier writ petitions mentioned above. The judgment passed in earlier writ petitions dated 30.8.2006 mentioned above shall form the part of this judgment.