TMI Blog2014 (2) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... in granting the impugned permission permitting the Assessing Officer to initiate the proceeding for reassessment by the order dated 22.02.2008 as contained in annexure-4 of the writ petition. The consequent notice for reassessment under Section 21(2) given by the Assessing Authority dated 11th March, 2008, annexure-6 to the writ petition is also valid. The Assessing Officer has, thus, wrongly given adjustment of ₹ 1,22,245.00. Realizing the mistake, the Assessing Officer wants to correct it. Whether a writ court can prevent the Assessing Officer to correct the mistake when law envisages such correction under Section 21 of the Act. The answer is obviously 'No'. 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 - show cause notices proposing re-assessment of the escaped turnover issued under Section 21 (2) of the U.P. Trade Tax Act are held to be valid - Decided against assessee. - Writ Tax No. - 502 of 2008, Writ Tax No. - 503 of 2008, Writ Tax No. - 504 of 2008, Writ Tax No. - 492 of 2008, Writ Tax No. - 1096 of 2008 - - - Dated:- 25-11-2013 - Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpretation in respect of particular provision though no such question in any of the proceeding before him was involved and issuing a direction to the subordinate authority to proceed on the basis of such view amount to interference in the judicial function of subordinate officers. In this view of the matter, we direct that the Commissioner of Trade Tax should refrain himself in issuing such direction in future, which amounts to interference in the judicial function of subordinate officers. In any view of the matter, the view express in the circular may amount to his own view and does not constitute material on the basis of which a believe could be formed to reopen the case. 73. Further, perusal of the notice issued by the Assessing Authority reveals that no material has 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the tax paid on paddy under the State Law out of which such rice was procured. (ii) The proceeding under section 21 of the Act have been initiated without any material on the basis of which believe could be formed that there was escaped assessment, namely, that the tax levied on the inter-State sales of rice under the Central Act has been wrongly reduced by the tax levied on paddy under the U.P. Trade Tax Act out of which such rice was procured except on account of change of opinion." 76. The initiation of proceeding under section 21 (1) of the Act on account of change of opinion is not permissible and, therefore, the initiation of proceeding under section 21 of the Act in the cases of the petitioners are bad in law." 5. It is submitted that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uasi judicial function in conformity with law, smoothly and harmoniously. As a matter of fact, the said circular can be taken as if it is providing assistance to quasi judicial authority in discharge of its duties. It is interesting to note that the judgment of Aryaverth Chawal Udyog (supra) holding the circular as valid is based on the decision given by the Apex Court in the case of Satnam Overceas (Export), etc. versus State of Haryana, 2002 UPTC 1211, wherein the Apex Court had an occasion to interpret Section 15(c) of the Central Tax Act. Although, in the circular, the CTT has independently took the view but is being in conformity with the ratio of M/s Satnam Overceas (supra) is in a sense reminds the trade tax authorities the correct exposition 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds are adequate or not is not a matter which would be gone into by the High Court or Supreme Court, for the sufficiency of the grounds which induced the assessing authority to act is not a justiciable issue. What can be challenged is the existence of the belief but not the sufficiency or reasons for the belief. At the same time, the belief must be held in good faith and should not be a mere pretence. 11. It cannot be disputed that in S/s Gaya Deen Kailash Chand vs. State of UP others (supra) a Division Bench of this Coure merely explained the judgment in M/s Aryaverth Chawal Udyog and others vs. State of UP and others (supra) which had also accepted the same principle of law that under Section 15 (c) of Central Act the 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 22.02.2008 as contained in annexure-4 of the writ petition. The consequent notice for reassessment under Section 21(2) given by the Assessing Authority dated 11th March, 2008, annexure-6 to the writ petition is also valid. There is one more aspect of the case yet. The purchase tax paid in the State of U.P. by the petitioner, as held in the case of Satnam Overceas (supra) and M/s Aryaverth Chawal Udyog (supra) cannot be adjusted against the central sales tax. The Assessing Officer has, thus, wrongly given adjustment of Rs.1,22,245.00. Realizing the mistake, the Assessing Officer wants to correct it. Whether a writ court can prevent the Assessing Officer to correct the mistake when law envisages such correction under Section 21 of the Act. The answer is obviously 'No'. 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." 17. For the reasons given as above, the show cause notices proposing re-assessment of the escaped turnover issued under Section 21 (2) of the U.P. Trade Tax Act are held to be valid. 18. All the writ petitions are consequently dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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