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THE COMMISSIONER TRADE TAX U.P. LKO. versus NATIONAL PROJECT CONSTRUCTION, CORPORATION RAJENDRA NAGAR

High Court of Judicature at Allahabad

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The Commissioner Trade Tax U.P. Lko. v. National Project Construction, Corporation Rajendra Nagar - SALES/TRADE TAX REVISION No. 1399 of 1997 [2005] RD-AH 4740 (24 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no.55

TRADE TAX REVISION NO.1399 of 1997.

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

Versus

S/S National Project Construction Corporation, Bareilly.  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 12th  August, 1997 relating to the assessment year 1991-92 by which the Tribunal has quashed the proceeding under section 21 of the Act.

Brief facts of the case are that the dealer opposite party (hereinafter referred to as "dealer") was a contractor claimed to have executed a works contract during the year under consideration and received a sum of Rs.54,41,104/-. During the course of the assessment proceeding, the detail of the works contract and the payment received have been furnished which have been duly examined and the assessing authority passed the assessment order on 6.10.1995 and levied the tax on Rs. 1,63,000/-, the purchases made from unregistered dealer. Thereafter, notice under section 21 of the Act was issued on 3rd February, 1986 fixing the date of hearing as 19th February, 1996. Assessing authority reexamined the contract executed by the dealer and by way of best judgment assessment estimating the turnover at Rs.61,18,915/- and levied the tax at Rs.7,34,062.25 paise. Appeal filed by the dealer was rejected. Dealer filed second appeal before the Tribunal, which has been allowed by the impugned order. Tribunal held that at the time of the issue of notice, there was no fresh material on record, which led to believe that there was, escaped assessment. Tribunal held that the contract executed during the year under consideration and the payment received have been examined by the assessing authority during the course of the assessment proceeding and in the assessment order, the same has been dealt with. Tribunal was of the view that the proceeding under section 21 has been initiated on the basis of the same material only on account of change of opinion, which according to the Tribunal was not permissible, and, accordingly, Tribunal quashed the order passed under section 22 of the Act.

Heard counsel for the parties.

I have perused the order of the Tribunal and the authorities below.

I do not find any error in the order of the Tribunal. Tribunal has referred few order sheet entries and findings recorded in the original assessment order which are relevant to be referred hereinafter.

tkc odZ ds lk{;ds vHkko esa xyr dj eqfDr nsus ls /kkjk&21 ds vUrxZr dk;Zokgh vko';d gSA vr% uksfVl HkstsaA

-------------o"kZ 91&92 ds dj fu/kkZj.k vkns'k esa 1-63-000&00 dk ckyw] feV~Vh]ekSje dh [kjhn ekuh xbZ gS tcfd dj fu/kkZj.k ds le; nkf[ky fooj.k ds vuqlkj 32] 14] 240&43 ,oa 16] 35] 144&15 dk tkc odZ ds fo:) Hkqxrku izkIr djuk ?kksf"kr fd;k x;k gS] ftlds ifjizs{; esa vkjksfir dj de gS D;ksafd tkc odZ ds leFkZu esa mDr o"kksZa esa dkUVz~SDV dh izfr nkf[ky ugha fn;k x;k gSA izi=&3&Mh ds tkjh fooj.k esa Vkoj ikVZy ,oa ,lsljht fy[kk x;k gS] tcfd lquokbZ ds le; nkf[ky fcyksa dh QksVksizfr;ksa ls ;g fooj.k fHkUu gSA ftlds dkj.k rRdkyhu O;kikjdj vf/kdkjh ds le{k dj vkjksfir gksus ls jg tkus dk Ik;kZIr vk/kkj gksus ds dkj.k gh O;kikjh dks /kkjk&21 dk uksfVl Hkstk x;kA

--------- bl o"kZ bjsD'ku o bjsD'ku of.kZr 7] 67] 584&20 ds izekf.kr gSaA bUgksus bl o"kZ Hkh fufeZr LFkku ij Vkoj dEiksusUV o fiNys QkeZ ckDl dks fMtkbu ds vuqlkj tksM+dj Vkoj fuekZ.k fd;k gS vkSj Vkoj bjsDlu fd;k gS] tks odZ dkUVsZDV gSA ,u0,p0ih0lh0 dks buds }kjk tkjh fcy ds ys[kksa esa bUokYOM eSVhfj;y o etnwjh fcy cukdj isesaV izkIr izkIr fd;k tkrk gS bl o"kZ fMVsy vkQ odZ bu esa :0 5] 91]718&92 dh jkf'k dk oxhZd`r C;ksjk gS vkSj fMVsy vkQ tkc odZ e; izkbZ'k oSfj;s'ku ch lh :0 48] 49 384&62 vkj0 ,y0 LVhy ls bl QeZ ds vuqcU/k dks c;ku esa lhfu;j ,dkmUVsUV us izLrq u dj lduk Lohdkj fd;k gS] ysfdu Lo;a o ,u0,p0ih0lh0 ds chp ds fMld'ku dh fjdkMZ uksV dh dkih nsuk Lohdkj fd;k gSA O;kikjh dh vksj ls vf/kd`r lhfu;j ,dkmUVsUV ds c;ku ls mij fyf[kr lk{; izdk'k esa vki ftuds lEcU/k esa vadkRed fLFkfr vkMhfVM cSysa'k 'khV ls izekf.kr gksrh gSA

In the original order under section 71 of the Act, the assessing authority observed as follows.

--------- mDr fooj.k ls Li"V gS fd ;s okn odZ dkUVz~SDV dk gS vkSj bles fufgr eSVsfj;y bl izdkj gS%& d- Vkoj dEiksusUV] [k- ok;j] x- lhesaUV] yksgk] ckyw] eksje ?k- uVcksYVA

mDr leLr lkexzh esa ls fctyh ds rkj Bsads dh 'krksZa ds vuqlkj ,u0,p0ih0lh0 }kjk fn, x;s gSa vkSj 'ks"k lHkh [kjhn ,u0ih0lh0lh0 }kjk izkUr ds vUnj ls dh xbZ gS ysfdu blesa dsoy eksje ckyw] feV~Vh dks NksM+dj vU; lHkh oLrqvksa dh [kjhn QeZ }kjk izkUr ds vUnj ds iathd`r O;kikfj;ksa ls dh xbZ gS vkSj lEcfU/kr O;kikjh us lsy ds nkSjku dj vnk fd;k gS] ,Sls fcyksa ls izekf.kr gksrk gSA -----

laxr o"kZ esa QkeZ&ckDl ds mi;ksx dk dksbZ fooj.k QeZ }kjk ugha fn;k x;k gS ftlls fu"d"kZ fudyrk gS fd mDr ij dksbZ dj O;kikjh ds gkFkksa dj ns; ugha gSA

On the consideration of the findings recorded in the original assessment order, the order sheet entries and the finding recorded in the order passed under section 21 of the Act, Tribunal concluded that at the time of the issue of notice under section 21, there was no information or any kind of material on the basis of which it could be believed that there was escaped assessment. Tribunal held that in the original assessment order, the works contract, executed during the year under consideration and the payment received have been examined in detail and in the proceeding under section 21 of the Act, the same material has been reexamined and an adverse inference has been drawn only on account of change of opinion. In my opinion, the view taken by the Tribunal is correct. The order sheet entry shows that at the time of issue of the notice, there was no information or any kind of material on the basis of which the believe could be formed that there was escaped assessment and the proceeding under section 21 appears to have been initiated to reexamine the nature of the contract which is not permissible under section 21 of the Act. In the circumstances, Tribunal has rightly set aside the order passed under section 21 of the Act. It is settled principle of law that a proceeding under section 21 of the Act cannot be taken on account of change of opinion and there must be some material on record at the time of issuance of notice under section 21 of the Act to form the believe of escaped assessment. Reliance is placed on the decisions of the Division Bench of this Court in the case of M/S Palco Lining Co. Versus State of U.P., reported in 1983 UPTC 1116, M/S Harbans Lal Malhotra Versus Assistant Commissioner of Sales Tax, reported in 1994 UPTC 1041 and M/S P. Anand and Sons, Agra Versus Commissioner of Sales Tax reported in 2004 UPTC 244.

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

Dated.24.10.2005.

VS.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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