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2013 (6) TMI 469 - HC - VAT and Sales TaxRe opening of assessment under the Trade Tax Act as well as under the Entry Tax Act - suppressed sale of raw material for manufacture of Gutkha - survey conducted upon unregistered dealers by the Central Excise Department from whom, it is said that petitioner used to purchase raw material for manufacturing Gutka and on the basis of the report so submitted by the Central Excise Department, proceedings for reopening and reassessment under Section 21 (2) of the Trade Tax Act have been initiated on the ground that certain turn over has escaped from the assessment - Held that:- Regarding writ petition No.4287 (MB) of 2013 the assessee has not cooperated as mentioned in the report submitted by the Central Excise Department. At the time of survey, and thereafter, opportunity was given to the petitioner to submit his reply. Prima-facie, there is suppressed sale of raw material for manufacture of Gutkha though which is not taxable but its raw material is taxable, which was purchased by the petitioner from unregistered dealers. When it is so, then we are of the view that matter needs further inquiry by the A.O. The petitioner is at liberty to put its defence before the A.O. We hope that petitioner will cooperate with the A.O. at least this time. Thus no reason to interfere with the impugned order passed by the competent authority to grant the permission under section 21 (2) of the Trade Tax Act for reopening the assessment for the assessment year 2006-07. In its defence, the assessee will get another chance at the time of reassessment proceedings. So, the writ petition dismissed. As regards writ petition No. 4300 (MB) of 2013 it may be noted that there is no dispute in the fact that the petitioner is manufacturer of Gutka. The final product in the form of Gutka has been manufactured for the first time and the same was sold within the local area. Therefore, in view of provisions of Section 2 (C), there is no liability for payment of Entry Tax by the manufacturer, who by no stretch of imagination can be said to be a dealer in terms of Section 2 (b) of the Entry Tax Act, 2007. In the instant case, the assessment order for Entry Tax was already passed. Further, the order was also passed by the first appellate authority. Thus, the assessment order has already merged in the first appellate order, as agreed by both the parties. When it is so, then no reassessment can be made pertaining to Entry Tax and no proceedings under Section-21 can be legally initiated. Hence, set aside the impugned order pertaining to the Entry Tax Act only. The petitioner will get the relief accordingly.
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