TMI Blog2010 (8) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act ) beyond the normal period of limitation and the initiation of reassessment proceedings by the Deputy Commissioner (Assessment), Grade II, Trade Tax, Moradabad for the aforesaid assessment years vide notice dated March 8, 2007. The petitioner is a partnership firm, carrying on the business of manufacture and sale of wooden pallets and plywood and fitments. The Uttarakhand had been formed on November 9, 2000 after carving out some of the area of State of Uttar Pradesh. Prior to the formation of Uttarakhand, the provisions of the U.P. Trade Tax Act were applicable to the area of Uttarakhand. The sales to the manufacturers holding recognized certificate under section 4B of the Act were, either partially exempted or fully exempted under the notification issued in this regard. However, this benefit was not available on the sale to the manufacturers of Uttarakhand after its formation. It appears that to provide same benefits on the sales made by the dealer of the State of U.P. to the manufacturer of Uttarakhand, a Notification No. KA.NI-2-3915/XI-9(129)/2000-Act-74-56Order(49)-2000, dated November 23, 2000 had been issued in exercise of powers under section 8(5) of Central S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver of Rs. 21,62,162.50 and claimed full exemption on the sales of Rs. 32,18,445.48. Since form C in respect of the aforesaid turnover could not be filed, the assessing authority levied the tax at 10 per cent and allowed time to the petitioner to furnish form C. The petitioner furnished the form C subsequently. Therefore, Misc. Order has been passed by the assessing authority on December 26, 2002. The assessing authority levied the tax at 2.5 per cent on the turnover of Rs. 24,91,330 and had exempted the turnover of Rs. 34,39,927. Likewise, for the assessment year 2001-02 in the absence of form C the tax has been levied at 10 per cent and the time for filing the form C was allowed. The petitioner filed form C within the time allowed. The assessing authority passed the Misc. order on April 7, 2003 and levied the tax at 2.5 per cent on the turnover of Rs. 49,13,786 and granted exemption on the turnover of Rs. 1,09,25,489. For the assessment year 2002-03 in the original assessment proceeding, in the absence of form C the tax was levied at 10 per cent. Out of the aforesaid turnover, form C in respect of Rs. 99,55,684 was furnished. The assessing authority has granted the exemption on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover. He submitted that other sales to the manufacturer/dealer of Uttarakhand against form C, who were holding recognition certificate under section 4B of the Act and had not exported the manufactured goods outside the country were liable to tax at 2.5 per cent under Notification No. K.A.NI.-2-530/ XI-9(231)/94-U.P. Act-15-48-Order-2000, dated February 17, 2000 and had been rightly assessed to tax accordingly. He submitted that the Additional Commissioner has illegally held that Notification No. TIF-2-289/XI9(820)/92-U.P. Act-15-48-Order-99, dated February 12, 1999 cannot be read along with Notification No. NI-2-3915/XI-9(129)/2000-Act-74-56Order(49)-2000, dated November 23, 2000. He, however very fairly submitted that for the period November 9, 2000 to November 23, 2000, the petitioner is not entitled for any exemption on the turnover of the aforesaid period and would be liable to tax at four per cent against form C and at 10 per cent without form C. He further submitted that it is true that Notification No. TIF2-289/XI-9(820)/92-U.P. Act-15-48-Order-99, dated February 12, 1999 has not been referred in the assessment order but by granting the exemption on the turnover it is imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged at the rate at which it would have been charged, had the turnover not escaped assessment or full assessment as the case may be. Explanation I: Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment or full assessment to the best of its judgment. Explanation II: For the purpose of this section and of section 22, assessing authority means the officer or authority who passed the earlier assessment order, if any, and includes the officer or authority having jurisdiction for the time being to assess the dealer. Explanation III: Notwithstanding the issuance of notice under this sub-section, where an order of assessment or reassessment is in existence from before the issuance of such notice, it shall continue to be effective as such, until varied by an order of assessment or reassessment made under this section in pursuance of such notice. Notification No. KA.NI-2-3915/XI-9(129)/2000-Act-74-56-Order (49)2000, dated 23rd November, 2000: Notification No. KA.NI-2-3915/XI-9(129)/ 2000-Act-74-56-Order (49)-2000, dated November 23, 2000 published in the U.P. Gazette, Extra, Part 4, section (Kha), dated Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture or in the packing of the goods mentioned in column 2 of the said annexure manufactured or processed by him and that the goods mentioned in column 2 of the said annexure shall be notified goods for the purposes of the said section 4B. ANNEXURE Sl.No. Name of notified goods Name of the goods Rate of tax 1. 2. 3. 4. 1. Chemical fertilizer and elec-trical energy (a) Natural gas (b) Declared goods (c) All other raw material, processing material, consumable stores, machinery, plant, equipment, spare parts, accessories, components, fuel or lubricants for use in the manufacture of or any packing material for packing of notified goods manufactured by him. 5 per cent 2 per cent 2.5 per cent 2. Goods manu-factured by distilleries and breweries Molasses 8 per cent 3. All other goods (a) Declared goods (b) All other raw material, processing material, consumable s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods are exported out of India and also sold otherwise or disposed of otherwise than by way of sale then the purchase of such goods liable to tax shall be determined in accordance with the ratio of quantity of exported goods and goods otherwise sold or disposed of otherwise than by way of sale: Provided that no concession under this notification shall be admissible in respect of sale to or purchase by distilleries and breweries. Perusal of the assessment order reveals that there is no reference of Notification No. TIF-2-289/XI-9(820)/92-U.P. Act-1548-Order-99, dated February 12, 1999. The perusal of the aforesaid notification reveals that full exemption was not unconditional and was subject to the certain conditions. Unless those conditions could be fulfilled, the full exemption could not be granted. Perusal of the assessment order reveals that the assessing authority had not examined that those conditions had been fulfilled or not. No finding had been recorded in this regard. No finding had been recorded that the manufacture/dealer of Uttarakhand had exported the manufactured goods outside the country. On the facts and circumstances, it cannot be believed that while grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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