JUDGMENT R.R. Misra, J.
1. By means of this revision the assessee has challenged the order dated 31st August, 1987, passed by the Sales Tax Tribunal. For the assessment year 1975-76, proceedings under Section 21 of the U.P. Sales Tax Act (hereinafter referred to as "the Act") were initiated and a best judgment assessment was framed. On appeal one of the points that was accepted by the first appellate authority was that there had not been valid initiation of proceedings under Section 21 of the Act. Therefore, he allowed the appeal filed by the assessee. Aggrieved, the Commissioner of Sales Tax filed a second appeal before the Sales Tax Tribunal. By the impugned order the Sales Tax Tribunal has allowed the appeal filed by the Commissioner of Sales Tax and upset the view taken by the first appellate authority. It has held that proceedings under Section 21 of the Act were in order. Thereafter, it has considered the matter regarding quantum of assessment also.
2. I have heard learned counsel for the parties. The first submission made by the learned counsel for the assessee is that in this case assumption of jurisdiction by the Sales Tax Officer under Section 21 of the Act was not in accordance with law and, therefore, the assessment in question is vitiated. Both the appellate authorities below have relied upon the following order passed by the Sales Tax Officer in the order sheet with regard to initiation of proceedings under Section 21 of the Act:
Dhara 21 ki notice bhegi jay kyonki Dhara 3-KaKaKaKa ke antargat tatha kutch anya janch karni awashyak hai. Dinank 11-1-1979 ke liye asthagit.
3. Learned counsel for the assessee contends that for the purposes of fishing and roving enquiries no proceeding under Section 21 of the Act could be initiated as is clear from the extract of the order passed in the order sheet quoted above. I find force in the said submission, in my opinion, the Sales Tax Officer concerned has first on the basis of the materials before him to arrive at a conclusion that there had been prima facie some escapement of turnover and it is then only that he can assume jurisdiction of issuing notice under Section 21 of the Act and not otherwise. In the present case, as is clear from the extract of the order passed in the order sheet quoted above, the Sales Tax Officer had assumed jurisdiction only for the purposes of making certain enquiries. The word "kyonki" occurring in the said initiation is clear indication of the same. This by itself also shows that till the date of issue of the notice he had not arrived at a conclusion that even firima facie there had been any escapement of turnover. The view taken by the Sales Tax Tribunal under the impugned order to the contrary that mere mention of launching an enquiry by the assessing authority in the order sheet would, to our mind, not invalidate the initiation of proceedings under Section 21 of the Act, is wholly incorrect in law. To my mind, from a reading of the said extract, it is amply clear that notice under Section 21 in question was issued only for the purposes of fishing and roving enquiries in the present case. The view taken to the contrary by the Sales Tax Tribunal in the impugned order is, therefore, erroneous in law.
4. Learned Standing Counsel has also submitted that the mention of making enquiry in a stage subsequent to issuance of notice under Section 21 of the Act would not invalidate the initiation of said proceedings. This submission is, however, incorrect in view of the aforesaid entry in the order sheet, which sets out the object of issuance of notice under Section 21 of the Act for making enquiries. In this view of the matter the submission made by the learned Standing Counsel, in my opinion, has got no substance.
5. In the result, the revision succeeds and is allowed with costs, which are assessed at Rs. 200 (rupees two hundred).