9911796707
TMI Blog2010 (3) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner was assessed to tax under the U.P. Trade Tax Act for the assessment year 2000-01 vide order dated May 31, 2002 at the rate of 10 per cent of the sale turnover of Rs. 34,00,310. The said assessment is sought to be reopened on the basis of the impugned sanction. We have heard Sri Ravikant, learned Senior Advocate assisted by Sri Umesh Chandra Kesarwani, learned counsel for the petitioner and Sri U.K. Pandey, learned standing counsel for the respondents. Sri Ravikant, senior advocate has submitted that the petitioner is engaged in the sale of anhydrous ammonia in liquid form which is a chemical and, therefore it was rightly assessed to tax at the rate of 10 per cent. Merely for the reason that some audit objection was taken later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form for commercial purpose and is an inorganic chemical as well as gas. The assessing authority for the assessment years 2001-02 and 2002-03 has again taxed the turnover of the petitioner treating ammonia as a chemical at the rate of 10 per cent and not as gas. In view of aforesaid, it is admitted to respondents that the petitioner is a dealer in anhydrous ammonia which is stored and kept in liquid form for the purposes of transportation, sale and purchase. Now entry No. 22 of the schedule to the notification dated January 15, 2000 reads as under: "22 (i) Chemicals of all kinds 10% (ii) Natural gas However, vide notification dated January 29, 2001 an additional entry 20%" No. 47 was added which reads as under: "47 Oxygen a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans anhydrous ammonia in common popular sense is a chemical. The consistent view of the courts has been that a word or commodity must be understood as in common parlance and according to its common and dominant use, in the popular sense in which the people dealing with it understands. A Division Bench of the Karnataka High Court in the case of Mysore Ammonia (P) Ltd. v. State of Karnataka [1993] 90 STC 439 in Sales Tax Appeal No. 2 of 1989 decided on August 26, 1992 has held that anhydrous ammonia would fall under entry No. 79 which pertains to chemicals of all kinds and would not fall under entry No. 121 which relates to industrial gas such as oxygen, acetylene, nitrogen and the like. Accordingly, we are of the opinion that the assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscount Co. Ltd. v. Income-tax Officer [1961] 41 ITR 191 (SC) and Madhya Pradesh Industries Ltd. v. Income-tax Officer [1965] 57 ITR 637 (SC). It is equally settled principle of law that the notice under section 21 of the Act cannot be issued on account of change of opinion on the basis of material available on record. In the instant case the assessing authority applied its mind in taxing ammonia at 10 per cent of the turnover as observed previously though without referring to the two notifications. Therefore it is manifest that it treated ammonia as a chemical on due application of mind which cannot be said to be unmindful of the notification dated January 29, 2001. Accordingly, we find substance in the submission of learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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