M. Katju, J.
1. This writ petition has been filed for a writ of prohibition quashing the proceedings under Section 21 of the U.P. Trade Tax Act, 1948 in pursuance of the permission/authorisation granted by the respondent No. 2 under the proviso to Section 21(2) of the U.P. Trade Tax Act, 1948.
2. Heard learned counsel for the parties.
3. The petitioner No. 1 is a registered firm doing the business of civil construction and supply of building material to Government departments especially railways. The petitioner No. 2 is a partner of the firm. During the assessment year 1996-97 the petitioner-firm received payment of Rs. 17,22,771 from different Government departments in respect of construction work carried on by the firm. It is alleged in paragraph 4 of the writ petition that after making the deductions towards the trade tax, water charges, etc., the petitioner-firm received a sum of Rs. 12,53,358. After deducting labour charges and the amount of security the net amount received by the petitioner comes to Rs. 10,21,141. It is alleged that out of this amount the petitioner had purchased iron, steel, cement, grits and bricks of Rs. 10,07,496 from registered dealers within the State and the said material was used by the petitioner in construction work. The Trade Tax Officer, now designated as Assistant Commissioner, Trade Tax, Khand-2, Banda, after verifying the list of purchases from the original bills produced during the assessment proceedings granted exemption from payment of tax on the aforesaid amount of Rs. 10,07,496 and estimated the purchase of sand and morum from unregistered dealers at Rs. 18,000 and imposed tax on the said amount at Rs. 1,350. Since the various departments while making the payments to the petitioner had deducted trade tax to the tune of Rs. 36,048 as such the Trade Tax Officer vide his order dated December 4, 1999 ordered that after adjusting the tax of Rs. 1,350 from the amount which had been deducted from the bills of the petitioner the balance be refunded to the petitioner. True copy of the assessment order is annexure 1 to the writ petition.
4. It is alleged in paragraph 6 of the writ petition that the petitioner had submitted the list of purchases made by him from the registered dealers within the State of U.P. and the assessing authority being fully satisfied that all the purchases except sand and morum used in construction work was made from registered dealers after payment of trade tax granted exemption from the liability of payment of trade tax on the said amount. It is alleged that all the original bills were duly produced by the petitioner before the assessing officer and the trade tax officer has recorded a finding that original bills and vouchers pertaining to the purchases were produced before him and the said vouchers were verified by him from the purchase list. The said assessment order became final as no appeal or revision was filed against it.
5. Subsequently the petitioner received a notice dated January 16, 2003 from the office of the Additional Commissioner, Trade Tax, Jhansi, asking him to appear on January 30, 2003 before the said authority for deciding whether permission may be granted by the said authority under Section 21(2). It is alleged in that notice that information has come before the said authority about the wrong grant of exemption and alleging that vouchers of purchases are not on the record, and also alleging that the petitioner has not produced the papers regarding the alleged supply and construction work, True copy of the notice is annexure 2 to the writ petition. The petitioner appeared before the said authority and filed his objection but the said authority passed an order on February 11, 2003 granting permission under Section 21(2) of the U.P. Trade Tax Act, 1948 vide annexure 3 to the writ petition. Thereafter the respondent No. 1, Assistant Commissioner, Trade Tax, Banda, issued notice to the petitioner dated February 15, 2003 asking the petitioner to appear before the said authority on February 27, 2003. It is alleged that no reasons were supplied to the petitioner along with the said notice. True copy of the notice is annexure 4 to the writ petition.
6. Thereafter an ex parte assessment order dated March 13, 2003 was passed against the petitioner imposing tax liability on him. Aggrieved against that order the petitioner filed an application under Section 30 of the U.P. Trade Tax Act, 1948, on July 23, 2003 and on that application the assessing officer set aside the order dated March 13, 2003 on August 5, 2003 and the case was reopened. Thereafter the case was fixed for September 2, 2003 but on that date the petitioner could not appear before the respondent No. 1 and the case was fixed for September 10, 2003 vide annexure 5 to the writ petition. In that notice it has been stated that the petitioner had not submitted the papers regarding the purchases. It is alleged by the petitioner that the notice dated February 15, 2003 under Section 21 of the Act is illegal as it does not contain reasons, particularly since the assessing officer had perused all the relevant documents and that there was no fresh material for issuing fresh notice. It is also alleged that no reasons had been recorded in the notice dated February 13, 2003 for reopening the assessment and there was only change of opinion.
7. A counter-affidavit has been filed by the respondent No. 1 and we have perused the same. In paragraph 6 it is stated that the petitioner did not appear in response to the notice under Section 21(2) on February 15, 2003 and did not produce the bills, vouchers and account books in support of the purchases. Hence the ex parte order dated March 13, 2003 was passed and a tax of Rs. 1,11,742 was imposed. Thereafter an application under Section 30 was filed and the case was reopened but despite several opportunities the petitioner had not verified the list of purchases nor had he produced the vouchers regarding purchases.
We have also perused the rejoinder affidavit.
8. This writ petition was filed in September 2003 that is long after the order dated February 11, 2003 was passed by the respondent No. 2 granting permission under Section 21(2) and long after the notice dated February 15, 2003 and even long after the assessment order dated March 13, 2003. Since there is unexplained delay as to why the order dated February 11, 2003 was challenged after a delay of seven months we are not inclined to look into the validity of the order dated February 11, 2003 as the challenge to that order is belated. For these reasons we also not inclined to go into the validity of the notice dated February 15, 2003 as the same has been challenged after seven months and thus there is unreasonable delay. Hence we are not inclined to permit the petitioner to challenge the reopening of the assessment under Section 21 of the U.P. Trade Tax Act, 1948. A party who approaches this Court must come within a reasonable period and not whenever he chooses. If the challenge is belated the petition will be dismissed on the ground of laches, as writ is a discretionary remedy, vide Chandra Singh v. State of Rajasthan (2003) 6 JT SC 20.
9. It may be noted that after the notice under Section 21 was issued to the petitioner on February 15, 2003 even the assessment order was passed on March 13, 2003. Hence challenge to the order dated February 11, 2003 and notice dated February 15, 2003 in September 2003 is clearly belated.
10. In Larsen and Toubro Ltd. v. State of Gujarat AIR 1998 SC 1608 the petitioner challenged the notifications under Section 4 and Section 6 of the Land Acquisition Act after acquisition proceedings had been completed. The Supreme Court held that the petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings, and thereafter challenge the notifications, as this would be putting a premium on dilatory tactics.
11. In our opinion the ratio of the above decision will apply to the facts of this case too, though it does not relate to the Land Acquisition Act but the U.P. Trade Tax Act. In our opinion when permission is granted by the Commissioner under the proviso to Section 21(2) and notice is issued to the dealer he must challenge the same at the earliest, and at any event before the assessment order is passed, otherwise it would put a premium on dilatory tactics. If the assessment order is passed the petitioner should be relegated to his alternative remedy of appeal under Section 9.
12. Apart from the above, on merits also the petitioner has no case. Section 21(1) itself states that if the assessing authority has reason to believe that the whole or any part of the turnover had escaped assessment of tax or was under-assessed or was assessed at a lower rate of tax or any deduction or exemption has been wrongly allowed the assessing authority may, after issuing notice to the dealer make reassessment. Thus Section 21 itself states that if the deduction was wrongly allowed proceedings under Section 21 can be taken. In the present case a perusal of the order dated January 16, 2003 shows that the respondent No. 2 was of the opinion that the exemption has been granted wrongly and necessary papers had not been submitted or were not on record. Hence in our opinion permission was rightly granted by the respondent No. 2.
13. In Commissioner of Sates Tax, U.P. v. Bhagwan Industries (P) Ltd.  31 STC 293 (SC) ; it was held that where the dealer has not submitted the relevant account books and the assessing authority had material to show that part of the turnover had escaped assessment proceedings under Section 21 could be taken. In paragraph 9 of the said judgment (page 299 of STC) it was observed that if there are in fact some reasonable grounds for the assessing authority to believe that the whole or any part of the turnover had escaped assessment it can take action under Section 21. Of course the grounds should not be of extraneous character and should be germane to the formation of the belief regarding escaped assessment, but otherwise this Court cannot interfere on the ground of insufficiency of the material. What can be challenged is the existence of the belief but not the sufficiency for reason to believe.
14. In Sonpal Sanjay Kumar v. Sales Tax Officer 1997 UPTC 73 a division Bench of this Court observed that the assessment orders showed that the assessing officer did not specifically deal with the point whether peas was a cereal or a pulse within the meaning of the aforesaid notification and Section 14 of the Central Sales Tax Act. The division Bench observed that this was a case of non-application of mind by the assessing officer at the time of the original assessment as a consequence of which the turnover of peas has escaped assessment. Hence the proceedings for reassessment under Section 21 could validly have been initiated under Section 21 of the U.P. Trade Tax Act, 1948.
15. In Rawalpindi Flour Mills (P.) Ltd. v. State of U.P. 1998 UPTC 172 a division Bench of this Court observed :
"Now the validity of the notice under Section 21 depends on the question whether the petitioner had been allowed the exemption in the original assessment proceedings on a wrong premise to which it was not entitled under law. This question and the other related matters on which the petitioner may like to assail reassessment proceedings can legitimately be raised and canvassed before the assessing authority itself. If for some reason the decision goes against the petitioner, there is adequate forum provided under the Act where the aggrieved person can seek redressal of his grievances.
In our considered view on the facts and circumstances of the case, it is not a fit case for interference under article 226 of the Constitution of India."
16. In Kalpana Kala Kendra v. Sales Tax Officer  75 STC 198 ; 1989 UPTC 597 this Court observed :
"Section 21 of the Act is based upon the theory that the taxes must be paid by the assessee in correct sum and likewise it must be collected by the statutory machinery. The escapement from assessment whether it results on account of a concealment practised or fraud played by the assessee or as a result of negligence or ignorance of the assessing authority, in our opinion, is of no consequence, provided the action to reopen the assessment is otherwise justified and the assessing officer is not acting arbitrarily or in a capricious manner. The escapement of assessment contemplated under that section may be due to various reasons. The term 'turnover has escaped assessment to tax', which includes under-assessment, may as well be a result of lack of care on the part of the assessing officer or by reason of inadvertence on his part. Section 21 does not prohibit obtaining of information from the investigation of material on the record of the original assessment. The scope of that section is not circumscribed by a rider like the one that exists in Section 147(a) of the Income-tax Act, 1961, namely, the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that year, income chargeable to tax has escaped assessment for that year. The escapement envisaged by Section 21 of the Act for the purposes of reassessment need not necessarily spring from a source extraneous to the original record."
17. We agree with the view taken in the aforesaid decision. In the present case the order dated January 16, 2003, annexure 2 to the writ petition, shows that the allegations against the petitioner were that the petitioner had done sale and construction work of Rs. 17,22,771 for the Divisional Railway Manager, Jhansi, but he had not submitted the contract papers in this connection. The further allegation was that an exemption of Rs. 10,07,496 had been granted to him and the purchase papers in that connection were not on record. The notice, copy of which is annexure 5 to the writ petition, also makes similar allegations against the petitioner and also states that the petitioner had not submitted the papers regarding purchases or its photocopies. Thus the allegation against the petitioner was that he had not got such purchases verified nor had he produced the relevant vouchers regarding the purchases. He had not produced the relevant account books or bills and vouchers in support of the purchases made by him. In our opinion this was relevant material on the basis of which action under Section 21 could be taken, and we cannot go into its adequacy.
18. As observed by the division Bench of this Court in Kalpana Kala Kendra v. Sales Tax Officer (supra) taxes must be collected by the statutory machinery, and hence action could be taken under Section 21, whether it results on account of concealment or fraud by the assessee or as a result of negligence or ignorance of the assessing officer. The escapement of assessment contemplated by Section 21 may be due to various reasons.
19. We agree with the decision in Kalpana Kala Kendra v. Sales Tax Officer (supra) that the scope of Section 21 of the U.P. Trade Tax Act, 1948 is wider than that of Section 147(a) of the Income-tax Act, 1961. The escapement envisaged by Section 21 of the U.P. Trade Tax Act, 1948 need not necessarily spring from a source extraneous to the original record. Action under Section 21 can be taken on the basis of material already on record at the time of the original assessment, if the escapement of assessment to tax was a result of lack of care or inadvertence on the part of the assessing officer.
20. In the present case we are of the opinion that there was material before the respondent-authorities prima facie showing that there was both concealment by the petitioner as well as negligence and ignorance on the part of the assessing officer, as already discussed above.
21. In the present case there was certainly lack of care on the part of the assessing officer who framed the original assessment as he did not verify the purchases made by the petitioner and he did not look into the contract document and appears to have wrongly granted exemption. Hence there is no illegality in the impugned order and notice.
22. For the reasons given above we find no merit in this petition and it is dismissed.