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2009 (11) TMI 830 - ALLAHABAD HIGH COURTValidity and legality of the circular dated February 17, 2004 issued by the Commissioner, Trade Tax, U.P. wherein it has been provided that sale and purchase of eatable goods by the club to its members is taxable as the same is included within the extended definition of "sale and purchase" after 46th Amendment of the Constitution in article 366(29A) of the Constitution of India, has been challenged Held that:- We see no illegality in the impugned circular of the Commissioner, and the submission of the petitioner to the contrary is misconceived. The petitioner was assessed ex parte in the said assessment year 1994-95 on the basis of the certain information received. The appellate authority examined the said information and was satisfied that the said information was inadequate to hold the petitioner a dealer. The information was that some demonstration of cold drink by Pepsi Company was made and the said company after the demonstration had removed its machines and goods. On these facts, it was found that the petitioner-company is not a dealer and no cold drink was sold. The amended definition of "sale" as contained in section 2(h) was not up for consideration before the appellate court, nor was considered. The appellate authority proceeded to address the controversy treating that the assessee was a society nor indulged in sale and purchase transaction and is running on no-profit and no-loss basis. On these facts, it cannot be said that initiation of reassessment proceeding is based on change of opinion. Appeal dismissed.
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