JUDGMENT
Arun Tandon, J.
1. In respect of the Assessment Year 1975-76 on the basis of certain documents recovered from M/s. Kaka Saheb Nana Saheb, (a third party) as well as on other material taxable turn over of the petitioner was fixed at Rs. 6 lakhs while tax liability of the petitioner was determined at Rs. 12,0007- under order of the Assessing Authority dated 30.1.1980.
2. Feeling aggrieved by the said order the assessee preferred an Appeal under Section 9 of the U.P. Trade Tax Act. The Appeal was allowed under the order of the Assistant Commissioner (Judicial) dated 28.4.1983 and the matter was remanded to the Assessing Authority with the following directions:
Is Sambandh Mein Bikrikar Adhikari Ko Chahiye Tha Ki Kaka Saheb Nana Saheb Nanak Firm Se Pooch Tachh Karke Yah Nishit Karte Ki Chandi Ke Is Indraj Vastav Mein Kis Vyakti Se Sambandhit The. Kar Nirdharan Patravali Ke Avlokan Se Spasht Hota Hal Ki Aisi Koi Pooch Tachh Nahin Ki Gavi. Atah Nyay Ki Drishti Se Yah Uchit Hoga Ki Case Punah Bikrikar Adhikari Ko Remand Kiva Jaye. Kar Nirdharan Adhikari Ne Kaka Saheb Nana Sahed Namak Firm Se Pratinidhi Ko Bulakar Is Indraj Ke Sambandh Mein Pooch Tachh Karen Tatha Yah Nishchit Mat Vyakt Karen Ki Yah Indraj Kis Vyakti Se Sambandhit Hal. Yadi Pooch Tachh Ke Bad Yah Paya Jaye Ki Indraj Appealkarta Se Hi Sambandhit Hal To Punah Niyamanusar Kar Nirdharan Sampann Karen.
Aadesh
Appeal Swikar Ki Jati Hai Tatha Case Bikrikar Adhikari Ko Uprokt Nirdeshon Ka Avlokan Karne Ke Baad Punah Nistaran Hetu Prati Preshit Kiya Jata Hal.
3. The Assessing Authority thereafter issued notices to the partner of the firm M/s. Kaka Saheb Nana Saheb. It appears that the partner of the said firm did not respond to the notices so issued and, therefore, the Assessing Authority proceeded to determine the turn over as well as the tax liability of the petitioner on the basis of the statement made by the partner earlier before the Trade Tax Officer which was admittedly recorded behind the back of the assessee.
4. Feeling aggrieved by the order passed by the Assessing Authority dated 25.2.1984, petitioner preferred an Appeal under Section 9 of the Trade Tax Act which was numbered as Appeal No. 302 of 1984. Amongst other it was contended on behalf of the petitioner that the order of remand of the First Appellate Authority dated 24.8.1983 has not been carried out by the Assessing Authority in letter and spirit, mere service of the notice upon the partner of the firm Kaka Saheb Nana Saheb, the partners having not responded to the said notices cannot be held to sufficient compliance of the order of remand in the facts of the case inasmuch as the Assessing Authority has not chosen to enforce their attendance as per the powers conferred under Rule 75 of the U.P. Trade Tax Act. The First Appellate Authority rejected the contention so raised on behalf of the petitioner with a finding that the partner of the firm M/s. Kaka Saheb Nana Saheb to whom notice has been served had not responded and, therefore, adverse inference has rightly been drawn against assessee.
5. The Second Appeal preferred by the petitioner under Section 10 of the Trade Tax Act, met with the same fate under the order of the Trade Tax Tribunal dated 13.8.1990. Hence the present revision.
6. From the order of remand passed by the First Appellate Authority dated 24.8.1983 it is apparently clear that specific directions were issued for examining the partner/manager of the firm Kaka Saheb Nana Saheb and for confirming as to whether the statement made by the them in respect of melting of the silver having been done for the petitioner. Thereafter further proceedings, were to be taken accordingly.
7. In the opinion of the Court mere service of notice upon the partner of the firm and their refusal to participate in the proceedings cannot be held to be sufficient compliance of the order of remand. The Authority should have taken recourse to all such legal provisions for enforcing the attendance of the partner/manager of M/s. Kaka Saheb Nana Saheb as are provided for under Rule 75 of the U.P. Trade Tax Rules.
8. For the reasons best known to the Assessing Authority such a course provided under law has not been adopted. Unless and until all procedures prescribed by law have been adopted for ensuring the attendance of the partner/manager of M/s. Kaka Saheb Nana Saheb the Assessing Authority was not justified in drawing an adverse inference against the assessee. The order of remand passed by the higher authority has to be enforced by the subordinate authority with all sincerity and in accordance with the procedure provided under the Act and the Rules. Mere part compliance is not sufficient.
9. First Appellate Authority as well as the Trade Tax Tribunal have also failed to take note of the aforesaid aspect of the matter and, therefore the order passed by the First Appellate Authority and the Tribunal also cannot be legally sustained.
10. All the three orders are accordingly quashed. The present trade tax revision is allowed. The matter is remanded to the Assessing Authority for decision afresh strictly in accordance with the directions issued by the First Appellate Authority dated 28.4.1983 passed in Appeal No. 1009 of 1980 after adopting all the procedure provided for under law. The Assessing Authority shall complete the proceedings on remand preferably within six months from the date a certified copy of this order is filed before him. Petitioner undertakes to submit a copy of the this order within two weeks from today before the Assessing Authority.