Jurisdictional tax notice under section 21 cannot be cured by recharacterising the assessment under another provision.

Where assessment proceedings were initiated under section 21 of the U.P. Sales Tax Act, service of that notice was jurisdictional and therefore material; a valid assessment could not stand unless the notice was properly served within the prescribed period. The assessment also could not be sustained by recharacterising it as one made under section 7(3), because once the taxing authority elected to proceed under section 21, the order had to be justified only with reference to that provision. The reference was answered accordingly, with the third question left unanswered as it depended on the validity of the section 21 notice.

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Issues: (i) whether service of notice under section 21 of the U.P. Sales Tax Act was material; (ii) whether the assessment order could be deemed to have been made under section 7(3) of the U.P. Sales Tax Act.

Issue (i): whether service of notice under section 21 of the U.P. Sales Tax Act was material

Analysis: Proceedings had been initiated under section 21, and once that course was adopted, the assessment had to stand or fall with the validity of the notice under that provision. A notice under section 21 is jurisdictional, and a valid assessment cannot be made unless it is properly served within the prescribed period.

Conclusion: The question of service of notice under section 21 was material, and the answer was in the affirmative.

Issue (ii): whether the assessment order could be deemed to have been made under section 7(3) of the U.P. Sales Tax Act

Analysis: Where proceedings were initiated under section 21, the resulting assessment could not be supported by treating it as an assessment under section 7(3). The two provisions may apply in overlapping situations, but once the taxing authority elects to proceed under section 21, the order must be justified with reference to that provision alone.

Conclusion: The assessment order could not be deemed to have been passed under section 7(3), and the answer was in the negative.

Final Conclusion: The reference was answered by holding that service of the section 21 notice was material and that the assessment could not be sustained under section 7(3); no answer was returned on the third question as it depended on the validity of the section 21 notice.

Ratio Decidendi: When assessment proceedings are initiated under a jurisdictional notice under a specific statutory provision, the resulting assessment must be justified with reference to that provision, and cannot be recharacterised under a different provision to cure defects in the initiating notice.

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