Brijlal Gupta, J.
1. This is a writ petition under Article 226 of the Constitution.
2. The prayer contained in the petition is that two ex parte assessment orders dated 31-12-1960 passed against the petitioner under Section 21 of the U. P. Sales Tax Act for the assessment year 1956-57 may be quashed.
3. The facts giving rise to the petition are that the petitioner firm started functioning from 4-9-1953. The petitioner has alleged that a dissolution of the firm took place on 2-11-1956. An intimation of the fact of dissolution was given to the Sales Tax Officer by communication dated 2-11-1956. Despite this the petitioner was assessed to sales tax for the months, of November and December 1956 and January and February 1957, This was a provisional assessment order. An appeal was taken against this order. The Judge (Appeals) Sales Tax, who by order dated 26-8-1957 allowed the appeal, observed in the appellate order as follows:
'It was said in arguments that the firm was dissolved on 2-11-56. The assesses has filed an appellate order which shows that the dissolution was not challenged in the previous appeal No. 156 of 1957.'
It is clear from this statement that the averment regarding the dissolution of the firm on 2-11-1956 was made in arguments before the Judge (Appeals) Sales Tax by learned counsel tonne petitioner. It is also clear that in the earlier appeal 155 of 1957 to which reference is made there does not appear to have been a finding that the firm had (been?) dissolved on 2-11-1956, because all that is stated is that the allegationof dissolution of the firm on that date was not challenged in that earlier appeal. Be that as it may, after the provisional assessment was set aside by this appellate order, it appears that the petitioner was finally assessed only for the period up to 2-11-1958. The matter rested there. Thereafter some time in the year 1959 that is to say, about two years after the date of the appellate order referred to above, a notice under Section 21 of the U. P. Sales Tax Act was served upon the petitioner. With regard to the service of this notice reference may be made to paragraph 3 of the assessment order under Section 21 which was subsequently made on 31-12-1960. In para 3 it is stated as follows:
'Notice was served on the dealer by affixation because Sri Ram Bilas who is now carrying on business in a different name refused to accept the notice, marked Ex. Q. Despite the service of the notice by affixation the dealer failed to turn upon the date of hearing.'
The fact of refusal to accept service of notice by Ram Bilas and the fact of affixation of the notice in consequence of the refusal of Ram Bilas have not been controverted in the affidavit filed in support of the petition. The deponent of the affidavit happens to be Ram Bilas himself. I must, therefore, proceed upon the footing that notice was in fact attempted to be served on Ram Bilas. Ram Bilas refused to accept notice. After refusing service of notice Ram Bilas might still have appeared in the proceedings consequent upon the notice under Section 21, but he did not do so and allowed the assessment to proceed ex parte. In one of the assessment orders under Section 21 viz. annexure 'C' which was passed on 31-12-1950, the Sales Tax Officer has referred to mass of materials on the basis of which he came to the conclusion that it was not correct that the dissolution of the firm took place on 2-11-1956. On the basis of the materials before him he has come to the conclusion that the firm was reconstituted only on 20-2-1957. Even after the reconstitution the name of the firm still continued to be Ram Bilas Radhey Shyam.
Upon that finding the order annexure 'C' was made against the firm estimating the turnover of the firm at Rs. 7,25,000/- after making allowance for the turnover at Rs. 75,000/- in respect of which the final assessment order had been recorded earlier. The assessment order makes unpleasant reading regarding the activities of Ram Bilas. No stone seems to have been left unturned by him to defraud the Sales Tax Department. It was open to Ram Bilas to have appeared before the Sales Tax Officer and to have taken all possible objections which he might have taken but he chose not to do so. In para 18 of the order it is stated that when he appeared before the Sales Tax Officer (S. I. B.) he merely challenged the correctness of the estimate of his turnover as mentioned by the witnesses, who appear to have been examined by the S. T. O. He does not appear to have raised the question that the original firm had in fact become dissolved on 2-11-1956. It follows that the points, if any, which he might and ought to have taken in the assessment proceedings were never taken by him and the assessment was allowed by him to proceed ex parte. It is clear that the objections which he did not raise in those proceedings cannot be allowed to be raised for the first time in a writ petition under Article 226 and on this ground alone the petition is liable to be dismissed.
4. To proceed further with the narrative of the events, another order under Section 21 was recorded by the Sales Tax Officer on the same date viz. 31-12-1980. This order was for a period subsequent to 20-2-1957. We have seen that the finding of the Sales Tax Officer was thatfirm Ram Bilas Radhey Shyam as originally constituted continued up to 20-2-1957 and with effect from 21-2-1957 the firm was reconstituted even though it confirmed to carry on business in the same name. This other order dated 31-12-1960 which is annexure 'D' to the affidavit is against the reconstituted firm for a period subsequent to 20-2-1957.
5. Two points have been taken before me in this writ petition by learned counsel for the petitioner. The first point is that the Judge (Appeals) Sales Tax in his order dated 26-8-1957 having accepted that the firm as originally reconstituted became dissolved on 2-11-1955, this finding could not be questioned in a proceeding under Section 21. Learned counsel has argued, that if at all, the Sales Tax Officer could have questioned the finding only in revision before the Judge (Revisions) Sales Tax. I do not agree with this contention. The language or Section 21 of the U. P. Sales Tax Act is very wide. It empowers the Sales Tax Authorities to re-assess the turnover of a dealer which may have escaped assessment 'for any reason.' To my mind fresh materials which may have been collected subsequently and on the basis of which it may be possible to come to the conclusion that an earlier finding on a point on the state of evidence then in existence was not a correct finding in the light of the additional materials would be 'such a reason' as would entitle the Sales Tax Officer to restart assessment proceedings under Section 21. It has not been possible for learned counsel to controvert this view, it follows that the impugned assessment order cannot be questioned on this ground.
6. Sri H. N. Seth, learned Junior Standing counsel has sought to support the action of the Sales Tax Officer on the further ground that the Judge (Appeals) Sales Tax in the order dated 26-8-1957 had set aside only a provisional assessment and there was nothing in the Act to prevent the Sales Tax Officer to go into the matter fully subsequently and to frame a final assessment order on such materials as may have come into his possession subsequently. This would not, however, meet the point of the learned counsel for the petitioner in this case for the reason that even the final assessment order which was made in this case proceeded upon the footing that the dissolution of the firm took place on 2-11-1958. However, in view of what I have stated above there was nothing to prevent the Sales Tax Authorities from going behind the appellate order or the final assessment order if before the expiry of the period of limitation provided under Section 21 on the basis of fresh or further materials in their possession they could come to a different conclusion on any point which may have been decided earlier further as has already been noticed already actually the Judge (Appeals) Sales Tax had not recorded a positive finding about dissolution of the firm on 2-11-1956.
7. The other point raised by the learned counsel for the petitioner was that there was no jurisdiction to record two orders under Section 21 in respect of the same assessment year. This argument is based upon a complete misunderstanding of the correct position. The two orders are against two differently constituted firms even though the firms bore the same name. The two orders are also in respect of two different periods, one ending 20-2-1957 and the other commencing thereafter. There is, therefore, no force in this submission. Upon the finding that the dissolution of the original firm took place on 20-2-1957 and the reconstituted firm started functioning from 20-2-57 there was nothing to prevent the Sales Tax Officer from recording two assessment orders under Section 21.
8. The petition must fail on another ground namely, that in a matter like this and particularly where there is a controversy on a question of fact namely as to the date on which the dissolution of the firm took place, the petitioner should have availed of the alternative remedy of appeal provided under the Act. In a recent decision of the Supreme Court reported in C. A. Abraham v. Income-tax Officer, : 41ITR425(SC) the Supreme Court has ruled in positive terms that a party cannot be allowed to by-pass a remedy provided under an Act and to avail of the remedy of a writ petition under Article 226 of the Constitution. Thus both for the reason that the decision of the writ petition involves a disputed question of fact and for the reason that the petitioner had an alternative remedy by appeal provided under the Act, the petitioner cannot be granted relief in this petition.
9. For the reasons stated above I dismiss this petition waith costs.