TMI Blog2010 (3) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore apparently not for the reason that the assessing authority has reason to believe that the turnover of the petitioner was wrongly assessed at a lower rate. Accordingly, the impugned order as well as the notice for reassessment cannot be sustained in law. We therefore direct for issuing a writ of certiorari quashing the sanction order dated August 4, 2006 (annexure 10 to the writ petition) and the notice dated August 17, 2006 (annexure 11 to the writ petition). - 1488 of 2006 - - - Dated:- 30-3-2010 - RAJES KUMAR AND PANKAJ MITHAL, JJ . In this petition the challenge is to the order of sanction dated August 4, 2006 of the Additional Commissioner, Trade Tax, Varanasi under section 21(2) of the U.P. Trade Tax Act, 1948 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in any other notification issued under the Act. Therefore, the above specific entry would prevail over the general entry and thus this notification forms the material for reopening of the assessment. In view of the respective submission of the parties, two basic points arise for determination in this writ petition, namely, (i) whether ammonia is a chemical or gas; and (ii) whether the sanction for reassessment is on account of change of opinion or the assessing authority genuinely has a reason to believe that the petitioner was assessed to tax at a lower rate than prescribed. The petitioner in the writ petition has categorically averred that it is dealing in anhydrous ammonia. Its manufacturers are raising bills as per the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the aforesaid notifications while making the assessment but has levied tax at the rate of 10 per cent of the turnover, obviously treating anhydrous ammonia under the head chemical. The assessing authority is supposed to be aware of all notifications and cannot plead ignorance of the subsequent notification. Therefore, the aforesaid decision is a conscious decision on part of the assessing authority and it cannot be presumed to have been passed in ignorance of the subsequent notification dated January 29, 2001. When both the notifications were treated to be within the knowledge of the assessing authority and despite specific entry No. 47 contained in the notification dated January 29, 2001, the assessing authority chooses to tax th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment. The word reason to believe came up for consideration before the apex court and various High Courts in several decisions. Apex court held that the belief must be formed on the basis of the material, which has a nexus to the escaped turnover. In Joti Parshad v. State of Haryana [1992] JT 6 SC 94 the honourable Supreme Court while dealing with the meaning of expression reason to believe in section 26 of the Indian Penal Code held that the reason to believe is not the same as suspicion and a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. To put it more simply, it is settled legal proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo competing entries for taxing an article, the entry which is beneficial to the assessee ought to be preferred. Therefore also if the assessing authority had taken the beneficial entry into consideration while making the assessment it cannot turn around and adopt the other entry on a pretext that there is escaped assessment or taxation at the lower rate. In view of the foregoing discussion, we are of the view that neither the notification dated January 29, 2001 is a fresh material nor it had escaped consideration at the time of assessment. The assessment was made on proper application of mind and therefore, notice of reassessment is nothing but an abuse of the process based on change of opinion which is not legally permissible. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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