TMI Blog1988 (12) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the parties we proceed to dispose of this writ petition finally. Shri M. Katju, learned counsel appearing for the petitioner, urged that the impugned notice for reassessment is without jurisdiction, inasmuch as, there was no turnover which could be said to have escaped assessment to tax in the original assessment. Further, the respondentassessing officer had no material in his possession on which he could have had reason to believe that any part of the petitioner's turnover for the year in question has escaped assessment to tax. The main thrust of the argument was that the impugned action has been taken as a result of change of opinion, which is not permissible within the purview of section 21 of the Act. A scrutiny of sub-section (1) of section 21 of the Act, which confers power on the assessing authority to reopen assessment in order to assess the correct amount of tax payable, would show that it comes into operation when the assessing authority has "reason to believe" that the whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax, or has been under-assessed or has been assessed to tax at a rate lower than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice under section 21 of the Act was issued on the basis of the material which warranted a reasonable belief that the turnover of the petitioner had been under-assessed. The challenge to the jurisdiction of the respondent to reopen the assessment has been refuted in clear terms in the counter-affidavit filed by the assessing officer. This stand of the respondent is backed by averments contained in paragraphs 6 to 9 of the counter-affidavit. In brief, three grounds have been stated. These are: (i) Purchases shown in the trading account by the petitioner were Rs. 6,38,502.77 whereas purchases as per purchase lists, which were made available by the petitioner itself are Rs. 9,89,492.60. It is claimed by the respondent that this fact was not considered by the assessing officer during the original assessment proceedings. (ii) Closing stock of Rs. 50,33,245.20 has not been taxed and the firm is said to be closed. (iii) An information was received from a dealer, namely, M/s. Sanjay Box Industries, Kanpur, on 23rd March, 1988, i.e., after the passing of the original assessment order, that purchases amounting to Rs. 68,042 were made by the petitioner from that dealer in 1983-84 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action. Sri M. Katju contended that in any case, on the department's own showing the purchase lists were made available by the petitioner itself and if the assessing authority had failed to apply its mind in the original assessment proceedings, for no fault of the petitioner, the action for reassessment cannot be sustained. It was argued that no fresh information had come in possession of the assessing officer after the original assessment, as a result of which the impugned action for reassessment was taken. Proceeding along, it was argued that on the basis of the case set up in the counter-affidavit at best it may be a case of change of opinion, but no action for reassessment on that account can be sustained under section 21 of the Act. There is no merit in the submissions advanced on behalf of the petitioner. In the first instance there is nothing on record to suggest that the purchase lists were made available to the assessing authority, when the original assessment was framed. The counter-affidavit clearly indicates that on receipt of the information from M/s. Sanjay Box Industries, which was received after the original assessment, some inquiries were made by the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the return or otherwise without anything more does not ipso facto take away the jurisdiction of the assessing authority to take action under section 21 of the Act. In Commissioner of Income-tax, Gujarat v. A. Raman and Co. [1968] 67 ITR 11, the Supreme Court while dealing with a matter under section 147(b) of the Income-tax Act, 1961 pointed as under: "Jurisdiction of the Income-tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment. That information must, it is true, have come into the possession of the Income-tax Officer after the previous assessment but even if the information be such that it could have been obtained during the previous assessment from an investigation of the material on record, or the facts disclosed thereby, or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income-tax Officer is not affected." Although the above decision was given with reference to section 147(b) of the Income-tax Act, but so far the issue with which we are concerned, the said section, as already noted, is in Pari m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Sales Tax, U.P. v. Madhu Chemical Works, Bareilly [1988] 71 STC 421 (All.); 1988 UPTC 230. It was held that in a case where a particular point has been considered on merits, and a view is taken, it would not be a case of inadvertent mistake or omission, if it is found that the view taken earlier was wrong. It would be a case of change of opinion, but if it is not so, then it would be a case of non-application of mind and an action would be justified under section 21 of the Act. As stated earlier, there is nothing on the record of this writ petition to show that the assessing authority was aware of the difference in the quantum of purchases as per the purchase lists and those disclosed in the trading account, much less the matter was considered at the time of the original assessment. Accordingly, we reject the submission that the impugned action is a result of change of opinion. After the issuance of the impugned notice under section 21, it appears that the petitioner had appeared before the respondent-assessing officer at least on three different occasions between 10th August, 1988 to 3rd September, 1988. However, when a show cause notice was issued requiring the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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