Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2014 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (3) TMI 948 - ALLAHABAD HIGH COURTInitiation of proceeding and issuance of notice u/s 21 (2) of the U.P. Trade Tax Act, 1948 – Re-opening of assessment order – Whether a complete assessment under the Act could be reopened and any case for reopening the assessment u/s 21(1) is made out after prescribed period when that period has been enlarged by amending the law - whether it is a case of change of opinion – binding force of per incurium judgment - Held that:- Decisions in Binani Industries Limited Versus Assistant Commissioner Of Commercial Taxes, Vi Circle, Bangalore [2007 (4) TMI 353 - SUPREME COURT OF INDIA] and Additional Commissioner (Legal) and another Versus Jyoti Traders and another [1998 (11) TMI 531 - SUPREME COURT OF INDIA] followed – By virtue of Section 21(2) and the proviso added to it, it is clear that the CST could authorize making of assessment or reassessment after the expiration of 6 years from such year, i.e upto 31.03.1999 or March 31,2002 whichever is later - It is immaterial if a period for assessment or reassessment u/s 21(2) before the addition of the said proviso had expired - Notice to the assessee follows the authorisation by the CST - A fiscal statute can have retrospective operation - If we accept the interpretation given by the respondents, the proviso added to Section 21(2) providing limitation up to 31.03.2002 becomes redundant - Proviso now added to Section 21(2) does not put any embargo on the CST not to reopen the assessment if period had expired before the proviso came into operation - To reassure oneself, one may go into the intention of the legislature in enacting such provision –thus, the impugned notice issued is well within time. While delivering the judgment the DB in M/s Prag Ice and Oil Mills and others Vs. Additional Commissioner of Trade Tax, Aligarh Zone and another; 2008 have not noticed the retrospectivity of the provisions contained in the proviso added to section 21(2) and the amended Ist proviso added on 5.3.2001 as a whole as interpreted by Apex Court in M/s Binani Industries Limited case(Supra) and Jyoti Traders case (Supra) as such the judgment in Prag Ice and Oil Mills case (Supra) being per incuriam have no binding force and are not binding precedent - Decided against assessee. The notice under section 21 has been issued without any fresh material but not on account of change of opinion - Initial opinion while passing the original assessment order was to grant exemption on such sale of scooters has not been changed while issuing the notice but on the same principles it was found that exemption has wrongly allowed to the extent of ₹ 97,02,050.65 which ought to be taxed - So far as this calculation of total amount of 270 certificates are concerned, the correctness of the same has not been disputed by the petitioner - In view of the factual matrix of this case the AC was having well founded reason to believe for issuing impugned notice and fall within the ambit of section 21(1), in limb-IV – Decided against assessee.
|