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C.S.T. v. S/S Gupta Chemicals, Pilkhua, Hapur. - SALES/TRADE TAX REVISION No. 865 of 1994 [2005] RD-AH 4044 (5 October 2005)


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Court no.55


The Commissioner, Trade Tax, U.P., Lucknow.           Applicant


S/S Gupta Chemicals, Pilkhua, Hapur.  Opp.Party.

Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 16th February, 1994 relating to the assessment year 1981-82.

Dealer/opposite party (hereinafter referred to as "dealer") was carrying on the business of potassium chlorate claimed to be chemical fertilizer. During the course of the original assessment proceeding dealer claimed to have sold potassium chlorate to the farmers for use as chemical fertilizer. The assessing authority had accepted the claim of the dealer. Subsequently, a proceeding under section 21 of the Act had been initiated by the assessing authority with the view that the potassium chlorate was chemical and was liable to tax under the entry "chemical of all kinds' and not as a chemical fertilizer. Assessing authority, accordingly, taxed the turnover of potassium chlorate at a higher rate applicable to the chemical. First appeal filed by the dealer was rejected. Dealer filed second appeal before the Tribunal, which has been allowed. Tribunal held that in the original assessment proceeding it was examined in detail by the assessing authority that the sales of potassium chlorate were made to the farmers as a fertilizer. Tribunal further found that in the assessment year, 1987-88, assessing authority again assessed potassium chlorate as a chemical fertilizer. Tribunal held that in the case of Suresh Silicate Versus CST, Shambhu Dayal Nanak Chand and Ajanta Chemicals, Tribunal held that potassium chlorate is a chemical fertilizer. Tribunal also relied upon the certificate issued by the Indo Europa Consultant Engineers, Ramnagar, Ghaziabad in which it is certified that potassium chlorate  is used as a fertilizer for growing vegetables. Tribunal came to the conclusion that the initiation of the proceeding under section 21 of the Act was only on account of change of opinion, which is not permissible.

Heard learned Standing Counsel. No one appears on behalf of the opposite party.

I do not find any error in the order of the Tribunal. It is settled principle of law that the proceeding under section 21of the Act cannot be taken on account of change of opinion. In the present case, claim of the dealer that potassium chlorate were sold to the farmers and it is used as a chemical fertilizer has been examined in detail in the original assessment proceeding by the assessing authority and thereafter claim was accepted. Tribunal also held that in various cases potassium chlorate has been held as chemical fertilizer by the Tribunal and in the case of the dealer itself for the assessment year 1987-88, assessing authority again treated potassium chlorate as chemical fertilizer.

In the result, revision fails and is, accordingly, dismissed.




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