TMI Blog2005 (11) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be sold after July 31, 1990 and total turnover by July 31, 1990 was disclosed at Rs. 3,47,200. Thus, he was of the view that 47 diesel engines which were in the opening stock were available for sale at Rs. 3,47,200 and according to which the selling rate comes to Rs. 7,387 per diesel engine. In this way, the profit earned should be Rs. one lac on the sale of only 47 diesel engines up to the period of July 31, 1990. It has also been stated that for the period August 1, 1990 to March 31, 1991, the average selling rate per diesel engine shown was Rs. 5,262 and the average purchase value was Rs. 5,470. Thus, it has been inferred that the lesser sale price has been disclosed. It has also been stated that as per details furnished closing balance was disclosed at Rs. 4,50,070 while in the assessment order a sum of Rs. 5,50,070 was mentioned. On the aforesaid fact dealer was asked to appear and explain the aforesaid discrepancy. Counsel for the opposite party appeared on September 12, 1995 and a short submission was filed, in which it had been stated that the Trade Tax Officer, Sector-I, Fatehgarh, had already issued notice under section 21 of the Act, thus the notice under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment order was passed under rule 41(8) on the basis of the various details which were got verified from the books of account and such details were also being verified in the proceeding under section 21 of the Act. The Tribunal further observed that if the Deputy Commissioner (Executive) would have passed the order after considering the order passed under section 21 of the Act, the alleged objection could not have survived. The Tribunal, accordingly, set aside the order passed under section 10-B of the Act. Heard learned Standing Counsel and Sri R.D. Gupta, learned counsel appearing on behalf of the opposite party. Learned Standing Counsel submitted that the Tribunal has erred in holding that proceeding undertaken by the Deputy Commissioner (Executive) under section 10-B of the Act was illegal in view of initiation of proceeding under section 21 of the Act. He submitted that both sections 21 of the Act and 10-B of the Act operate on a different footing. According to him, under section 21 of the Act proceedings are taken when assessing authority forms an opinion on the basis of the material which leads to an inference of escaped assessment, while under section 10-B of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parallel proceedings under sections 10-B and 21 of the Act cannot be taken on the basis of the same material. He further submitted that in the case of Samrat Carpet, Allahabad v. Commissioner of Trade Tax reported in [1999] UPTC 1203, this court held that under section 10-B of the Act, revising authority has no power to make the enquiry and for want of enquiry if revising authority finds that the impugned order is improper or illegal, he may direct the assessing authority to make the enquiry and pass a fresh order, but he himself cannot make the enquiry and pass the order. Heard rival submissions of the counsel for the parties and perused the order of the Tribunal and the authorities below. Sections 21 and 10-B of the Act read as follows: "Section 21. Assessment of tax on the turnover not assessed during the year. (1) If the assessing authority has reason to believe that the whole or any part of the turnover of dealer, for any assessment year or part thereof, has escaped assessment to tax or has been underassessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the opposite party that once notice under section 21 was issued, proceeding under section 10-B of the Act could not be taken, cannot be accepted. This argument can be accepted only in a situation when proceeding under section 10-B of the Act is initiated on the basis of the fresh material which resulted in the escaped assessment because on the basis of such material, proceedings under section 21 of the Act could only be initiated and not under section 10-B of the Act. This view has been taken by the division Bench of this court in the case of United Tractors, Gorakhpur v. State of Uttar Pradesh reported in [1997] 105 STC 48; [1996] UPTC 1185 and in the case of A.K. Corporation v. State of Uttar Pradesh reported in [1995] 96 STC 31; [1994] UPTC 75, but the Deputy Commissioner (Executive) is not debarred to examine the record which was available at the time of the assessment proceeding to arrive at a conclusion that order was improper or illegal merely because the notice under section 21 of the Act was issued. Thus, the view of the Tribunal that once a notice under section 21 of the Act was issued, proceeding under section 10-B of the Act could not be taken is not co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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