TMI Blog1995 (2) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessments with regard to sale of vacuum cleaners for the aforesaid periods, i.e., 1987-88, 1988-89, 1989-90 and 1990-91 were made by the assessing authority treating the vacuum cleaners as "machinery", which was taxable at the rate of 8 per cent. On 6th of August, 1991, the Commissioner of Commercial Taxes, Patna, issued one order (annexure 4) in terms with rule 7(10)(4) of the Bihar Sales Tax Rules, 1983, by which permission was granted to the petitioner to furnish consolidated return, with respect to business premises situated at Jamshedpur, Ranchi, Dhanbad and Muzaffarpur, at one place, namely, Pataliputra Circle, Patna. Earlier to that, assessments for the aforesaid periods had already been made by the Jamshedpur Circle, Bihar. 4.. It was under impugned notices issued on different dates in the year, 1993 (annexure 1 series), issued under section 19(1) read with section 17(2) of the Bihar Finance Act, 1981, the petitioner was asked by the respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur as to why reassessment for the aforesaid periods be not done. The petitioner filed reply as contained in annexure 5, objecting the reassessments stating therein that the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, Commercial Taxes, Jamshedpur, cannot be a basis for reassessment in terms with section 19(1) of the aforesaid Act; and (iv) After 6th of August, 1991 (issuance of annexure 4) the power relating to assessment having been vested with the Pataliputra Circle, Patna, respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur had no jurisdiction for reassessment. 7.. The first three points raised by the counsel for the petitioner are all related with section 19(1) of the Bihar Finance Act, 1981. Counsel for the petitioner pointed out that it is the annual audit report on the basis of which reassessment has been made and there is no other document and/or information available with the respondents for reassessment with respect to the aforesaid period. According to the counsel, audit report cannot be stated to be a source of information and/or document for the purpose of such reassessment. Further it is submitted that whether the vacuum cleaner is a "machinery" and/or "electrical goods", the audit party had no business to give their opinion with respect to the same. It has been also contended by the counsel for the petitioner that on the basis of such change of opinion, no reass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per appreciation of the case I may state that section 19(1) of the Bihar Finance Act, 1981 is pari materia same and similar to that of the old section 18(1) of the Bihar Sales Tax Act, 1959. Both of section 18(1) of the Bihar Sales Tax Act, 1959 and section 19(1) of the Bihar Finance Act, 1981 are extracted below: 12. A Full Bench of this Court in the case of Bhimraj Madanlal [1984] 56 STC 273 took into note the old provisions of section 18(1) of the Bihar Sales Tax Act, 1959, which is same and similar to new section 19(1) of the Bihar Finance Act, 1981. Having compared with section 18(1) of the Bihar Sales Tax Act, 1959 with that of section 147 of the Income-tax Act, 1961, the Full Bench held that the word "information" in both the provisions of section 18(1) of the Bihar Sales Tax Act, 1959 and section 147 of the Income-tax Act, 1961 have same and similar meaning for the purpose of reassessment. The Full Bench categorically held that second thought or a mere change of opinion of the authority on the same set of facts and materials would not constitute information, for the purpose of reassessment under section 18(1) of the old Bihar Sales Tax Act, 1959. Such finding of Full Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72 ITR 376 (SC), this Court held the opinion of the Central Board of Revenue as regards the correct valuation of securities for the purpose of estate duty to be 'information' within the meaning of section 59 of the Estate Duty Act, 1953, on the basis of which the Controller of Estate Duty was held entitled to entertain a reasonable belief that property assessed to estate duty had been under-valued. The circumstance that the opinion of the Board was rendered in an appeal filed before it under the Estate Duty Act against the assessment made by the Assistant Controller of Estate Duty was apparently not brought to the notice of this Court when it heard R.K. Malhotra, ITO v. Kasturbhai Lalbhai [1977] 109 ITR 537 (SC). The opinion of the Board represented its view as a quasi judicial authority possessing jurisdiction to lay down the law. Although the Board did not enhance the valuation of the securities in the appellate proceeding because of the argument advanced by the appellant nonetheless its observations amounted to information as to the law. It was not a case where the Board was functioning as an extra-judicial authority, performing administrative or executive functions, and not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderations prevailing with us, we are of opinion that the view taken by the Delhi High Court and the Kerala High Court in the aforementioned cases is wrong and we must, with great respect, hold that this Court was in error in the conclusion reached by it in R.K. Malhotra, Income-tax Officer v. Kasturbhai Lalbhai [1977] 109 ITR 537 (SC)." From the aforesaid finding of the Full Bench of this Court and division Bench of this Court ; and that of the honourable Supreme Court I can come to a definite conclusion and hold: (i) A mere change of opinion and/or second thought by any authority on the same set of facts and materials on record would not constitute "information" under section 19(1) of the Bihar Finance Act, 1981; (ii) There must be some material and/or facts on the record which had not been taken into account at the time of original assessment, to make reassessment in terms with section 19(1) of the Bihar Finance Act, 1981; and (iii) "Audit report" cannot constitute "an information", as enumerated under section 19(1) of the Bihar Finance Act, 1981, for the purpose of reopening of assessment. 15.. I may state that the cases cited by the Advocate-General as reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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