1. This is a writ petition under Article 226 of the Constitution. The relief claimed is for the issue of a writ of prohibition to the opposite party, the Assistant Sales Tax Officer, Aligarh (hereinafter referred to as the S. T. O.) restraining him from proceeding to recover any tax for the year 1958-59, in respect of the assessment order passed by him on the 18th January, and for quashing the assessment order dated the 18th January, 1964, by the issue of a writ of certiorari.
2. The petitioner is carrying on business in the manufacture and sale of hand-made biris at Rewa, Madhya Pradesh. According to the petitioner he was appointing selling agents and one such selling agent appointed was Messrs Ghanshiam and Co. of Aligarh to whom biris were supplied. The assessment order dated 18th January, 1964, was made on Messrs Ghanshiam and Co., Aligarh. The counter-affidavit of the Assistant Sales Tax Officer (hereinafter referred to as the S. T. O.) was to the effect that Messrs Ghanshiam & Co. was only the branch and the head office was at Rewa. He also admitted that the statement of one Jumna Prasad, the manager of Ghanshiam & Co., was recorded by him as far back as 17th January, 1961, wherein the said manager had asserted that he was an employee of the petitioner-firm for about 12 or 13 years; that the firm of Ghanshiam & Co., had ceased to exist as such after July, 1959, and thereafter business was carried on in the name of Messrs, Panna Lal Umesh Kumar at Aligarh. It was further asserted by the S. T. O. that the proprietors of Messrs Ghanshiam & Co. were none other than the petitioner-firm and the former was in fact the branch of Messrs Panna Lal Umesh Kumar of Rewa. It was also admitted by the S. T. O. that on 12th September, 1960, one Fateh Singh, who described himself to be the manager of the petitioner-firm, had appeared before him and asked for an adjournment in respect of some case for the assessment year 1957-58. From these admissions it is abundantly clear that the S. T. O. was fully cognizant of the fact in January, 1961, that the firm of Ghanshiam & Co. of Aligarh was only a branch of the petitioner-firm and further that that firm had ceased to exist since 1959. Nevertheless, he proceeded to issue a notice dated 8th December, 1962, under Section 21 of the U. P. Sales Tax Act (hereinafter referred to as the Act) in the name of Messrs Ghanshiam & Co., Aligarh, a defunct firm. The process-server by his report dated 8th December, 1962, had reported, to quote from paragraph 8 of the counter-affidavit:
On an enquiry it was revealed that the firm has ceased to exist and the proprietor of the firm has gone out somewhere and hence the notice has been affixed.
3. After slumbering for nearly four months the Sale? Tax Officer is said to have woken up to the fact that the affixation of the notice by the process-server on 8th December, 1962, was without his instructions and. therefore, ostensibly, for that reason issued a fresh notice on the 25th March, 1963. It was again affixed. The report made by the process-server on that date is even more significant and, according to him, it was some Sindhi who was occupying this shop but even he had left. The Sales Tax Officer, thereafter, issued two or three other notices, the last one being dated the x8th of January, 1964, and each one of these notices was issued in the name of Ghanshiam & Co., Aligarh, and served by affixation. In the counter-affidavit, the justification for serving notices by affixation on a dealer who had ceased to carry on business since 1959, is that 'no other mode of service was feasible in the circumstances of the case'. Thereupon, an exparte assessment was made on the 18th of January, 1464, on Ghanshiam & Co., Biri Dealers, Aligarh.
4. Once again the Sales Tax Officer ran into serious difficulties, he having failed to keep in view the provisions of Rule 77 of the Sales Tax Rules (hereinafter referred to as the rules) and was faced with the question as to whom the assessment order and the notice of demand would issue? He, therefore, first appears to have put down the name of 'Jumna Prasad for M/s. Ghanshiam & Co.' and when that proved ineffective he by the stroke of his pen added the name of 'M/s. Panna Lal Umesh Kumar, Bin Merchant and Lorry Contractor, Ghoghar, Rewa (M. P.) for Messrs Ghanshiam & Co.' This is wholly irregular and unwarranted by any provision of law. It is not left to the sweet will and pleasure of the Sales Tax Officer to put any one's name he likes for somebody else. Before a person can be made liable to pay tax, it is elementary that notice must issue to such person. Assessment is a serious matter and tax can only be levied and collected in accordance with law. It must first be established after giving notice and hearing him that he is liable in law to pay the tax. Before he can be held liable to pay the amount, the law as well as the rules of natural justice require, that notice before the assessment is made, must be served upon him and the Sales Tax Officer cannot merely by the stroke of pen after the assessment has been made, add his name so as to extract the tax from him. The procedure adopted by the Sales Tax Officer, to say the least, is a curious one and is in complete disregard of the provisions of law. It was a sheer waste of time for the Sales Tax Officer to have gone on affixing notice after notice on a defunct business when it was within his knowledge that the proprietor of that business and the head office of that firm were at Rewa (M. P.). The least that was expected of him was to have made at least one effort to comply with the provisions of Rule 77 which in clear terms, inter alia, required him to serve a notice by registered post and only upon the failure of that mode of service he could have resorted to service by affixation. In the present case the report of the process-server shows that service by affixation was resorted to in the very first instance which was clearly in contravention of the provisions of Rule 77.
5. For the reasons given above, the assessment order and the notice of demand wherein the name of Messrs Panna Lal Umesh Kumar was subsequently added by the stroke of pen, are wholly without authority of law and require to be quashed by the issue of a writ of certiorari. The Sales Tax Officer is also restrained from taking any further proceedings in respect of that assessment order against the petitioner.
6. The application is allowed with costs.