Over 2 lakh Indian cases. Search powered by Google!

Case Details

M/S ALLAHABAD PAPER HOUSE versus STATE OF U.P.

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


M/S Allahabad Paper House v. State Of U.P. - WRIT TAX No. 597 of 1993 [2006] RD-AH 17052 (29 September 2006)

 

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

RESERVED

Civil Misc. Writ Petition No.597 of 1993

M/s Allahabad Paper House v. State of U.P. and another

Hon'ble R.K.Agrawal, J.

Hon'ble Vikram Nath, J.

(Delivered by R.K.Agrawal, J.)

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s Allahabad Paper House, seeks the following reliefs :-

"1. issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 22.3.93 issued by the respondent no.2 under Section 21 of the U.P.Sales Tax Act (Annexure No.7 to the writ petition);

2. issue a writ, order or direction in the nature of mandamus commanding the respondents not to proceed further reassessment proceedings against the petitioner for the assessment year 1984-85 under the Central Sales Tax in pursuance of the impugned notice dated 22.3.93 issued by the respondent no.2;

3. issue such other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the case; and

4. award costs of the petitioner to the petitioner."

Briefly stated, the facts giving rise to the present petition are as follows:-

According to the petitioner, it was a registered firm duly registered under the provisions of the U.P. Sales Tax Act (hereinafter referred to as "the Act"). The Registration was valid from the assessment years 1976-77 upto 1980-81. Its books of account had been accepted upto the assessment year 1980-81. On 30.4.1981, the petitioner surrendered its registration certificate to the Sales Tax Officer, Sector VII, District Allahabad, respondent no.2, who was the Assessing Authority. The proceedings for the assessment year 1984-85, both under the Act and the Central Sales Tax Act (hereinafter referred to as "the Central Act"), were initiated by the respondent no.2. The petitioner submitted its detailed reply. The respondent no.2, vide order dated 3.2.1989, passed separate assessment orders holding that it had carried the business, both under the Act and the Central Act. In the U.P. proceeding, the respondent no.2 had determined the taxable turnover at Rs.2,50,000/-and determined the tax liability at Rs.20,000/- whereas under the Central Act, the turnover was fixed at Rs.10,00,000/- and the liability of tax at Rs.1,00,000/-. Feeling aggrieved, the petitioner preferred separate appeals before the Assistant Commissioner (Judicial), Sales Tax, U.P., Allahabad who, vide order dated 11.7.1989, remanded the matter back to the Assessing Authority for fresh consideration. Still feeling aggrieved, the petitioner preferred further appeal before the Sales Tax Tribunal, Allahabad which, vide order dated 2.5.1990, directed the Assessing Authority to pass a fresh assessment order under the Act in the light of the directions contained in its order. The appeal preferred against the assessment made under the Central Act, was decided by the Tribunal later on 11.5.1992. Pursuant to the order dated 2.5.1990, the respondent no.2, vide order dated 17.10.1990, declared the petitioner non-taxable in respect of the U.P. proceeding. According to the petitioner, the Tribunal in its order dated 11.5.1992 has held that the information relating to M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.) did not pertain to the year 1984-85 and, therefore, the question of drawing an adverse inference against the petitioner did not arise. Subsequently, the respondent no.2 had issued a notice on 22.3.1993 under Section 21 of the Act calling upon the petitioner to produce its books of account and other documents. The said notice had been issued on the ground that information has been received from M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.) that the petitioner had sold paper worth Rs.5,07,362.50P. during the assessment year 1984-85 to that firm. The notice dated 22.3.1993 is under challenge in the present writ petition on the ground that initiation of reassessment proceeding on the same turnover which was already considered in the original assessment without any fresh material on record, is illegal and unjustified and the petitioner had already been assessed earlier under the Central Act on the alleged ground that the petitioner had sold paper to the said firm of Sagar and it had been declared non-taxable by the Tribunal. There was no fresh material for initiating the proceedings under Section 21 of the Act and it is based on a mere change of opinion.

In the counter affidavit filed by S.R.Bajpai, Assistant Commissioner, Trade Tax, Sector VII, Allahabad on behalf of the respondent no.2, in paragraph 3(d) it has been stated that subsequent to the assessment order dated 3.2.1989 for the assessment year 1984-85 under the Central Act, the answering respondent received information for sale of paper worth Rs.5,07,363.50P. by the petitioner to one M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.) and on this basis the notice under Section 21 of the Act was issued on 22.3.1993. The said information had not been considered in the original assessment proceedings. The proceedings initiated under Section 21 of the Act have been justified.

In the rejoinder affidavit filed by Sandeep Kumar Gupta, the proprietor of the petitioner firm, the averments made in the counter affidavit have been denied and the plea taken in the writ petition have been reiterated.

We have heard Sri Ashok Kumar, learned counsel for the petitioner, and Sri K.M.Sahai, learned Standing Counsel appearing for the respondents.

The learned counsel for the petitioner submitted that in the original assessment proceeding, the respondent no.2 while passing the assessment order for the assessment year 1984-85 under the Central Act, had determined the taxable turnover at Rs.10,00,000/- and a tax liability of Rs.1,00,000/- on the basis of the alleged sales made by the petitioner to M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.), which order had been set aside by the Tribunal on the ground that the information did not relate to the assessment year 1984-85 and instead it related to the previous year, i.e., 1983-84. According to him, as the alleged transaction did not relate to the year in question, initiation of proceeding under Section 21 of the Act on the basis of the same information, regarding transactions entered with the said firm, is wholly illegal and without authority of law and appears to have been initiated on a mere change of opinion or second thought which is not permissible under law. In support of his aforesaid plea, he has relied upon a decision of this Court in the case of Gopal Das, Kanpur v. Assessing Officer, Trade Tax, Sector 13, Kanpur, 2005 UPTC 1114.

Sri K.M.Sahai, learned Standing Counsel, on the other hand, submitted that in the original assessment proceeding the information which was received subsequent to passing of the assessment order, had not been considered and, therefore, the proceeding under Section 21 of the Act had rightly been initiated. According to him, there was specific information received by the respondent no.2 that the petitioner had sold paper to M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.) during the assessment year in question, which had escaped assessment to tax and, therefore, the present proceedings are wholly within jurisdiction.

In order to satisfy ourselves as to whether the information on the basis of which the present proceeding have been initiated, were received after the passing of the assessment order and whether there was any information regarding the transactions of sale during the assessment year in question, the Court, vide order dated 21.8.2006, directed the learned Standing Counsel to produce the relevant record. In compliance thereof, the records have been produced which we have perused. From the perusal of the record, we find that there is a letter dated 12.9.1990 sent by M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.) to the Sales Tax Officer, Sector VII, Allahabad, by registered post which had been received by the respondent no.2 on 17.9.1990, in which copies of the account of the petitioner for the year 1983-84 and 1984-85 were enclosed. It had mentioned that during the year 1984-85 it had not made any purchases from the petitioner but had made payment for the purchases made during the year 1983-84. It appears that the accounting period of M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.) starts from Diwali and there are four transactions of purchase which falls during the period April to October, 1984, which is relevant for the assessment year 1984-85, insofar as the petitioner is concerned, even though it was during the accounting period 1983-84 of M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.). Thus, it cannot be said that this information was not relevant for taking proceedings under Section 21 of the Act.  This information was received by the respondent no.2 much after the original assessment order under the Central Act had been passed, i.e., after about one and a half year.

We are further of the view that the Tribunal in its order dated 11.5.1992 had not considered these informations which were specific for the assessment year in question. The informations which were the subject matter of assessment and up for consideration in appeal, was held by the Tribunal to be relatable to the previous assessment year, i.e., 1983-84. Thus, the petitioner cannot take any advantage of the order dated 11.5.1992 passed by the Tribunal in respect of the original assessment proceeding for the assessment year in question.

So far as the decision in the case of Gopal Das (supra) is concerned, this Court has held that the proceeding under Section 21 of the Act in the aforesaid case was initiated on the basis of some material which were in existence at the time of the original assessment proceeding only on account of change of opinion. There was no fresh material with the Assessing Authority at the time of issue of notice on the basis of which a belief could be formed about the escaped assessment, which is a condition precedent for initiation of proceeding, as referred to above. It was observed that the survey dated 14.9.1995 had been considered in detail by the Assessing Authority in the assessment order and by the Appellate Authority and with regard to the self manufactured Kharal, there was no material on the basis of which a belief could be formed by the Assessing Authority that it was liable to tax as a Mill Store at the rate of 10%. The aforesaid decision is not applicable on the facts of the present case inasmuch as we have already come to the conclusion that the information which was received by the respondent no.2 was subsequent to the passing of the assessment order and was not the subject matter for consideration at the time of the original assessment proceeding. The information referred to the alleged transaction by the petitioner with M/s Bhagwan Das Shobhalal Jain, Chameli Chowk, Sagar (M.P.) was in respect of the part of the assessment year and, therefore, was a relevant information. The proceedings cannot be said to have been initiated on a mere change of opinion or on the basis of the same material. We, therefore, do not find any legal infirmity in the initiation of the proceeding under Section 21 of the Act.

In view of the foregoing discussions, we do not find any merit in this petition. It is accordingly dismissed. However, the parties shall bear their own costs.

September   25, 2006

vkp


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

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.