TMI Blog1989 (2) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... the said claim of the assessee. Subsequently, however, proceedings under section 21 of the Act were initiated against the assessee on the ground that under the said notification exemption was allowed only on sales and not on purchases. Since the assessee was liable to pay tax on purchases as well as sales, assessments were framed against the assessee for the said years on the basis of its liability on purchases only. The same had been unsuccessfully challenged by the assessee before both the appellate authorities below. The sole point urged by the learned counsel for the assessee is that on the facts of this case no proceedings under section 21 of the Act could be initiated in the years in dispute because the said notification in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Paper House v. Commissioner of Sales Tax, U.P. 1987 UPTC 664, Commissioner of Sales Tax, U.P. v. J.J. Enterprises 1981 ATJ 334, Commissioner of Sales Tax, U.P. v. Dwarica Das Varun Kumar 1979 UPTC 1152 and Commissioner of Sales Tax, U.P. v. Madhu Chemical Works [1988] 71 STC 421 (All.); 1988 UPTC 230. In the case of Madhuri Das Narain Das 1988 STJ 19, it was found that at the time of passing of the assessment order under rule 41(5) of the U.P. Sales Tax Rules, the Sales Tax Officer has applied his mind to the question of applicability of rate to the disputed sale. Therefore, it was held that it was a case of change of opinion. In the case of Prakash Paper House 1987 UPTC 664, the decision rested on the basis of peculiar facts of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of applying the principle of change of opinion in such a situation. Since all the original assessment orders for each of the four years in dispute were passed on 25th September, 1978, and were similarly worded, the learned Standing Counsel relies on the relevant portion from one of the assessment orders. The same is as follows: "Gat warsh 1973-74 mein uprokt sahkari samiti (registered) ki khadi village industries kamisan bambai dwara manyata prapta hone ke karan vigyapti san. S.T. 2783/X-902(60)/59 dinank 1.6.63 ke antargat kar mukt kiya gaya hai. Atah alochya warshon ketu bhi uprokt adhar par vyapari ki kar mukt kiya jata hai." He, therefore, submits that from a close reading of the original assessment order dated 25th September, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of non-application of mind and certainly the action would be justified. On the facts of that case, it was held that in regard to the levy of tax at a lesser rate proceedings under section 21 of the Act were justified. The same principle has later on been relied on by this Court in the case of Commissioner of Sales Tax v. Madhu Chemical Works [1988] 71 STC 421; 1988 UPTC 230 as already stated above. The other decision relied upon by the learned Standing Counsel is the case of Madras High Court in Bharat Refineries Ltd. v. State of Tamil Nadu [1982] 49 STC 134. It has been held in that case that the assessing authority will have jurisdiction to reopen an assessment so long as some turnover has escaped assessment. If by taking a wrong vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to how the said finding recorded by the Tribunal is vitiated in law in any manner whatsoever. In view of the aforesaid finding recorded by the Tribunal, the case has to be proceeded on the basis as if at the time of making of the original assessment, the Sales Tax Officer had not applied his mind to the question of levying tax on purchases or granting exemption in that regard. In this view of the matter and on the basis of the principle of law enunciated above, in my opinion, the Sales Tax Tribunal was right in law in upholding the framing of the assessment proceedings under section 21 of the Act for the years in dispute. In doing so, the Tribunal has, to my mind, committed no error of law. No other point was pressed. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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