Best judgment assessment notice requirement under the U.P. Sales Tax Act is procedural, so lack of notice makes assessment set asideable.

Under section 7(3) of the U.P. Sales Tax Act, a dealer who has filed no return must be given notice before turnover is determined on best judgment, because the inquiry and determination contemplated by the provision cannot effectively proceed without an opportunity to appear. The requirement is procedural, however, and not a jurisdictional condition precedent. Accordingly, failure to issue or serve notice does not render the assessment a nullity; it makes the assessment liable to be set aside so the dealer can be heard. This is distinguished from section 21(1), where notice is expressly jurisdictional in escaped assessment proceedings.

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Issues: Whether, in a best judgment assessment under section 7(3) of the U.P. Sales Tax Act where no return is filed, the dealer is entitled to notice before the turnover is determined, and whether absence of notice renders the assessment void and liable to annulment or only liable to be set aside.

Analysis: Section 7(3) empowers the assessing authority to determine turnover to the best of judgment after making such inquiry as it considers necessary. The language of the provision, read with the proviso and with section 30 of the Act dealing with ex parte assessments, shows that a dealer who has filed no return cannot be assessed without notice being sent to him. The inquiry and determination contemplated by the provision cannot be effectively carried out without affording the dealer an opportunity to appear. However, the requirement of notice under section 7(3) is procedural and not a condition precedent in the jurisdictional sense. The defect caused by non-issue or non-service of notice does not vitiate the assessment as a nullity. Instead, the assessment may be set aside and the dealer given an opportunity to participate. The position is different from section 21(1), where notice is expressly jurisdictional for escaped assessment proceedings.

Conclusion: Notice is required before best judgment assessment under section 7(3) when no return is filed, but omission to serve notice makes the assessment set asideable and not annullable.

Ratio Decidendi: In best judgment assessment under section 7(3) of the U.P. Sales Tax Act, absence of notice is a curable procedural defect, not a jurisdictional nullity; the proper consequence is setting aside the assessment, not annulment.

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