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TMI Blog2014 (1) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment Year 2004-05 under the proviso to Section 21(2) of U.P. Trade Tax Act, 1948 (hereinafter referred to as the 'Trade Tax Act'). The petitioner also questions notices dated 19 October 2013 issued by the Assistant Commissioner-respondent no.4 in connection with the application filed under Section 30 of the Trade Tax Act for 2004-05 and 2005-06 as well as the notices which have been issued for a regular assessment for Assessment Year 2005-06 and 2006-07. By an order dated 5th January 2007 the regular assessment for 2004-05 was completed on the basis that the petitioner had effected sales in the total sum of Rs. 54,114/- and purchases of Rs. 1,22,512/-. The third respondent, while granting approval under the proviso to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter' is defined in Section 2(e) to mean the dealer who makes the first sale of such goods after their import into the State, while the expression 'manufacturer' is defined in Section 2(ee) to mean a dealer who makes the first sale of the goods in the State after their manufacture. In the present case, it has been submitted that the petitioner is neither an 'importer' within the meaning of Section 2(e) nor a 'manufacturer' within the meaning of Section 2(ee) and hence in any view of the matter no liability of tax can be fastened on the petitioner. Hence, it has been submitted that there could be 'no reason to believe', within the meaning of the proviso to Section 21(1) of the Trade Tax Act, that any part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or re-assessment under the Act for any assessment year shall be made after the expiration of two years from the end of such year. The proviso to sub-section (2) empowers the Commissioner on his own or on the basis of the reasons recorded by the assessing authority to reopen an assessment notwithstanding that such assessment or reassessment may involve a change of opinion. The expression 'reason to believe' has been construed by the Supreme Court while interpreting the provisions of Section 21 of the U.P. Sales Tax Act, 1948 in The Commissioner of Sales Tax, U.P. Vs. Bhagwan Industries (P) Ltd., Lucknow reported in AIR 1973 SC 370. The observations of the Supreme Court are:- "............ In our opinion, these words convey that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Steel and Alloys Pvt. Ltd. (supra) the following principles have been laid down after considering the earlier decisions of this Court on the subject :- "(1) Section 21(2) provides that permission can be granted even if there is change of opinion. (2) The change of opinion may arise even if some material is brought on record after the assessment or there was lack of care or inadvertence of mistake. (3) Order granting sanction need not contain reasons in details but it should show application of mind." In the present case the third respondent while authorising a reopening of the reassessment for the year 2004-05 has furnished a tangible basis upon which the formation of belief has been founded. The search which was conducted upon M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of circumstances bringing the case within inter alia any of the exceptions, exemptions or reliefs mentioned in Section 3-A, shall lie upon the assessee and the assessing authority shall presume the absence of such circumstances. We are inclined to clarify that by this observation we are not concluding the merits of the defence which the assessee has on the substantive issues that will appear in assessment before the assessing officer in the course of reassessment for the year 2004-05 or the assessment for the years 2005-06 and 2006-07. All that needs to be determined at this stage is as to whether there was 'reason to believe' within the meaning of Section 21 and for the reasons which we have arrived at, we hold that the requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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