TMI Blog2013 (12) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... d - There was no good ground to entertain the challenge inasmuch as the circular is only by way of clarification and does not take away the jurisdiction of assessing authority of re-assessment - No writ can be issued to prohibit a person to correct a legal mistake - A writ jurisdiction is meant for doing justice and not to perpetuate injustice or technicalities - the show cause notices proposing re-assessment of the escaped turnover issued under Section 21 (2) of the U.P. Trade Tax Act are valid – Decided against Petitioner. - Writ Tax No. - 387 of 2008, Writ Tax No. - 461 of 2008, Writ Tax No. - 491 of 2008 - - - Dated:- 25-11-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Petitioner : Ashok Kumar,Praveen Kumar For the Respondent : C. S. C. ORDER 1. We have heard Shri Ashok Kumar for the petitioners. Shri C.B. Tripathi, Special Counsel appears for the State respondents. 2. All the petitioners are engaged in the business of purchase of paddy within the State of UP and manufacturer of rice. They sell the manufactured rice both within and outside the State of UP. In these writ petitions the petitioners have challenged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been referred on the basis of which believe was formed to reopen the case under section 21 (1) of the Act. In the original assessment order under section 9 of the Central Act, the tax levied on the turnover of rice under the Central Act has been reduced by the tax levied on the paddy out of which such rice was procured. Some of the assessment orders passed under section 9 of the Central Act have been filed along with counter and rejoinder affidavits. The reduction of tax could only be possible under section 15 (c )of the Central Act. Several writ petitions have been filed at Lucknow Bench and at Allahabad reveal that the Assessing Authority has understood section 15 (c) of the Central Act that reduction of tax under the Central Act on the turnover of rice with the tax levied on paddy was permissible. The notice under section 21 of the Act has been issued without any fresh material and only on account of change of opinion. Initial opinion while passing the original assessment order under section 9 of the Central Act may be incorrect, but once the view has been taken and the reduction has been allowed on the same existing fact, the proceeding under section 21 of the Act cannot be tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the judgment in M/s Aryaverth Chawal Udyog and others vs. State of UP and others (supra) has been challenged by the State of UP in Civil Appeal No.6714 of 2009 but no interim relief has been allowed. According to him the ratio of the judgment still holds good to be followed by the High Court. 6. Shri C.B. Tripathi, Special Counsel appearing for State of UP, on the other hand, submits that the question as to whether the Circular dated 29.3.2007 could be issued by the Commissioner, Trade Tax and whether reduction of central sales tax by the amount of State tax paid on purchase of paddy can be allowed, was subject matter of consideration in a subsequent judgment of this Court in S/s Gaya Deen Kailash Chand vs. State of UP others Writ Tax No.642 of 2008 decided on 6.3.2013. In this judgment the Court distinguished the judgment in M/s Aryaverth Chawal Udyog and others vs. State of UP and others (supra) and held that the circular is merely clarificatory in nature. The State authorities in the State of UP were proceeding to grant reduction of State tax paid on paddy in the Central Sales Tax on the basis of judgment rendered by Andhra Pradesh High Court in the case of Aitha Narasai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law . 7. Shri C.B. Tripathi submits that this Court clearly distinguished the notices issued under Section 21 (2) in M/s Aryaverth Chawal Udyog and others vs. State of UP and others (supra) and the notices issued in S/s Gaya Deen Kailash Chand vs. State of UP others (supra) and found that the notice in S/s Gaya Deen Kailash Chand is based on the circular dated 29.3.2007 issued by the Commissioner, Trade Tax informing that where central sales of rice has been made, the tax paid in the State law on paddy cannot be adjusted against the tax liability on the inter-state sale of rice. Such adjustment is impermissible and if such adjustment has been made, proceeding for refund under Section 21 (2) is desired. The circular, even in view of in M/s Aryaverth Chawal Udyog and others vs. State of UP and others (supra), contains the correct exposition of law. In the facts and circumstances the initiation of re-assessment cannot be held to be invalid. In S/s Gaya Deen Kailash Chand vs. State of UP others (supra) this Court referred to the provisions of Section 21 (1) of the Act, which provides:- Sub-section (1) of Section 21 of the Act confers power on the Assessing Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduction of tax leviable on the turn over of rice under the U.P. Trade Tax and with the tax levied on paddy out of which such rice was produced, cannot be allowed. The Central Act does not provide any reduction or tax by the tax paid on paddy under the State law out of which such rice was produced. 12. We do not find any substance in the argument of Shri Ashok Kumar that in S/s Gaya Deen Kailash Chand vs. State of UP others (supra) the Court had differed with the opinion expressed in M/s Aryaverth Chawal Udyog and others vs. State of UP and others (supra) on the questions raised and thus the matter should have been referred to a larger bench. We also do not find substance in his contention that since Hon'ble Supreme Court has issued notice and granted relief to the State of UP to challenge the judgment in M/s Aryaverth Chawal Udyog and others vs. State of UP and others (supra) this Court should wait until the Civil Appeal No.6714 of 2009 is decided by the Apex Court. This Court taking the earliest opportunity in in S/s Gaya Deen Kailash Chand vs. State of UP others (supra) clarified the judgment in M/s Aryaverth Chawal Udyog and others vs. State of UP and others (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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