Victor Cables Corporation vs State of Uttar Pradesh and Another

Satish Chandra, C.J.—On 27th of March, 1976, the petitioner was served with a notice dated 22nd of March, 1976, purporting to be u/s 21 of the U.P. Sales Tax Act. The same day another notice of 27th of March, 1976, but u/s 9(2) of the Central Sales Tax Act was served on the petitioner. The petitioner, on the same day, namely, 27th of March, 1976, filed an objection before the Assistant Commissioner (Assessment) enquiring as to which year the notice related and also stating that the assessment for the year 1971-72 had already been completed. No reply to this objection was given or served on the assessee-applicant till 31st of March, 1976. Subsequently, the petitioner filed a detailed objection. They were rejected by an order dated 28th of September, 1976. Thereupon, the petitioner came to this Court.

The learned counsel submits that the notice was without jurisdiction for two reasons: In the first place, the notice did not mention the assessment year for which it purported to reopen the assessment. The mention of such an assessment year is a mandatory requirement. In the next place, it was submitted that the Assistant Commissioner (Assessment) had no jurisdiction to issue the notice because the original assessment had been completed by the Assistant Sales Tax Officer, Ghaziabad.

In support of the first submission, the learned counsel invited bur attention to a decision of the Gujarat High Court in the case of Kurbanhussein Ibrahimji Mithiborwala Vs. Commissioner of Income Tax, Gujarat, . That was a case of reassessment u/s 34 of the Income Tax Act. The Bench held that a valid notice u/s 34 specifying with clearness and particularity of the assessment year, for which the assessment is sought to be reopened, is a condition precedent to the commencement of reassessment proceedings. The defect or mistake in such a notice cannot be waived by the assessee. This authority directly applies to the facts of the present case. Here, it is undisputed that the assessment year to which the notices relate was not at all mentioned in either of the two notices. This defect was fatal and went to the root of the jurisdiction of the authority. In the circumstances it is unnecessary to dilate upon the second point.

In the result, the petition succeeds and is allowed. The impugned notices are quashed. The parties may bear their own costs.