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Sri Jagannath Bhatla Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 210 of 1965
Judge
Reported in[1966]17STC540(All)
AppellantSri Jagannath Bhatla
RespondentSales Tax Officer and ors.
Appellant AdvocateP.N. Pachauri, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal dismissed
Excerpt:
- - 3. once it is found that the appellant had a right of appeal and failed to avail himself of it, he is precluded from challenging the assessment order on any ground in this court......9 of the act, an appeal from an assessment made under section 21 lies within 30 days of the date of service of the notice of assessment. section 9 allows appeals from certain orders and from assessments under certain sections. the period for an appeal is 30 days in all cases, but it is to be computed either 'from the date of service of the copy of the order or notice of assessment as the case may be'. this means that when an appeal is preferred from any of the orders mentioned in section 9 the period is to be computed from the date of service of a copy of the order, and when it is from an assessment, it is to be computed from the date of service of a notice of assessment. so, in the instant case the period of limitation was to be computed from the date of service of a notice of.....
Judgment:

M.C. Desai, C.J.

1. The assessment order was passed against the appellant under Section 21 of the U.P. Sales Tax Act. A notice of the assessment was served upon him on 20th August, 1961. Under Section 9 of the Act, an appeal from an assessment made under Section 21 lies within 30 days of the date of service of the notice of assessment. Section 9 allows appeals from certain orders and from assessments under certain sections. The period for an appeal is 30 days in all cases, but it is to be computed either 'from the date of service of the copy of the order or notice of assessment as the case may be'. This means that when an appeal is preferred from any of the orders mentioned in Section 9 the period is to be computed from the date of service of a copy of the order, and when it is from an assessment, it is to be computed from the date of service of a notice of assessment. So, in the instant case the period of limitation was to be computed from the date of service of a notice of assessment. Rule 45 is to the effect that as soon as an assessment has been made, the Sales Tax Officer 'shall send to the dealer a notice in Form XI together with a copy of the assessment order.' The notice in Form XI bears the heading 'Notice of assessment and demand for payment of tax' and commences with the words 'Take notice that you have been assessed/provisionally assessed under the Uttar Pradesh Sales Tax Act, 1948, on a turnover of Rs....' It is clear that a notice in Form XI is the notice of assessment contemplated by Section 9 and the period of limitation is to be computed from the date of its service. The appeal, therefore, in the instant case ought to have been filed within 30 days of 20th August, 1961, but he preferred an appeal in November, 1961, and it was rejected as barred by time by the Sales Tax Commissioner. It was contended that the notice of assessment was not accompanied by a copy of the assessment order though it was to be accompanied by it under Rule 45. Even if the notice of assessment was not accompanied by a copy of the assessment order, the period of limitation has still to be computed from the date of service of the notice. Section 9 is clear and does not permit the period to be computed from any other date in any circumstance. Section 9 does not speak of a copy of the assessment order being served upon the assessee, and the period of limitation, which is prescribed by it, can never be computed from the date of service of a copy of the assessment order, which is nowhere referred to in it. Merely because by Rule 45 the State Government requires the Sales Tax Officer to serve upon the assessee not only a notice of assessment but also a copy of the assessment order, it cannot be contended that so long as a copy of the assessment order is not served upon the assessee the period of limitation for an appeal does not commence at all. The State Government has no jurisdiction to alter the provisions of Section 9 in any manner. It may require that in addition to a notice of assessment a copy of the assessment order may be served upon the assessee but it cannot require that the period of limitation cannot commence unless a copy of the assessment order has been served. Therefore, the date, on which a copy of the assessment order is served, has absolutely no bearing on the date on which the period of limitation is to commence. It is to commence in every case on the date of service of a notice of assessment.

2. The Sales Tax Commissioner rightly rejected the appeal as barred by time. In any event, the view taken by him cannot be said to be manifestly erroneous, and this Court could not quash its order by certiorari even if it did not agree with it.

3. Once it is found that the appellant had a right of appeal and failed to avail himself of it, he is precluded from challenging the assessment order on any ground in this Court. He had an adequate remedy against the assessment order (by way of an appeal) and if he did not avail of it, this Court will not exercise its extraordinary jurisdiction and issue a writ. It was his duty to avail himself of the departmental remedy and he cannot circumvent the departmental remedy of appeal by invoking this Court's extraordinary jurisdiction and, therefore, this Court could not go into any of the questions that are raised in this petition.

4. Whether the notice of assessment was validly served or not depends upon facts. The Sales Tax Commissioner has treated the service as valid, and we see no justification to go into the facts and decide for ourselves, whether it was valid or not. It is enough that his finding that it was valid is not palpably wrong.

5. As regards the contention, that the notice of demand was illegal because it was addressed to the firm, no order passed in recovery proceedings, and no act done in recovery proceedings was challenged through the petition for certiorari, or mandamus, and it is unnecessary for us to go into the question whether the notice of demand was valid or not, and whether the recovery proceedings are legal or not.

6. We dismiss the special appeal summarily.


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