TMI Blog2010 (8) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... is exempted from tax. Therefore, the reopening of the proceedings for the assessment years 1997-98 and 1998-99 are only on account of change of opinion and cannot be sustained. So far as the assessment years 1999-2000 and 2000-01 are concerned, learned counsel for the petitioner fairly admitted that the issue has not been considered in the original assessment orders, therefore, reopening of the proceedings under section 21 of the Act cannot be said to be on account of change of opinion inasmuch as no opinion has been expressed in the order. It is settled principle of law that each year is a separate assessment year for the purposes of assessment. Writ petition is allowed in part - 1468 (Tax) of 2003 - - - Dated:- 27-8-2010 - RAJES KUMAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper in the circumstances of the case be also issued in favour of the petitioner. The brief facts of the case are that the petitioner is a public limited company incorporated under the Indian Companies Act, 1956 and is registered under the U.P. Trade Tax Act (called, the Act , for short) as well as under the Central Sales Tax Act (called, the Central Act , for brevity). The petitioner had its sugar factory as well as distillery in the district of Bareilly. The petitioner is involved in the sale of Indian-made country liquor (country spirit) and sale of molasses, etc. Manufacturing and sales of country liquor are strictly controlled and governed by the provisions of the U.P. Excise Act and Rules. Indian-made country liquor is exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover of such packing materials is not liable to be exempted under the provisions of section 3AB of the Act and are liable to tax at the rate applicable to it. It appears that the proposal has been sent on the basis of letter dated September 26, 2003 issued by the Government, which has been circulated by the Commissioner through its circular dated September 30, 2003. On receipt of the proposals for all the four assessment years, the Additional Commissioner has issued notices to the petitioner for providing opportunity. The petitioner filed separate replies for all the assessment years taking common pleas. The Additional Commissioner, vide impugned orders, granted approval on the basis of the reasons given in the proposal and, in pursuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3AB of the Act applies only in a case where a composite price for the goods and packing materials have been charged and it does not apply to a case where the price of the goods and packing materials have been separately charged. He submitted that special leave petition filed against the said order has been dismissed by the apex court. He further submitted that the provision itself is a source and constitutes material to initiate the proceeding and, therefore, it cannot be said that there was no material to form the belief about the escaped assessment. He has, however, admitted that for two assessment years, viz., 1997-98 and 1998-99 the assessing authority, in the assessment order, has adjudicated the issue but for the assessment years 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e country liquor and packing materials are separately charged whether the provision of section 3AB applies or not is squarely covered by the Division Bench decision of this court in the case of Majhola Distillery Chemical Works Majhola, District Pilibhit v. State of U.P. (Writ Petition No. 317 of 2004 delivered on dated October 4, 2007 See [2010] 34 VST 292 [App].) wherein it has been held that where the price of the goods and the packing materials are separately charged, section 3AB does not apply and accordingly it has been held that if the prices for the country liquor and the packing materials are separately charged, the value of the packing materials would not be exempted under section 3AB of the Act. The Division Bench of this court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the petitioner that the value of the bottles or poly pouches was not liable to tax, has been considered in details; the facts that the prices of the liquor and the bottles and the poly pouches have been charged separately, have been noticed and on the consideration of the aforesaid facts, the assessing authority had held that the value of the bottles and poly pouches were not liable to tax in view of section 3AB of the Act as the country liquor is exempted from tax. Therefore, the reopening of the proceedings for the assessment years 1997-98 and 1998-99 are only on account of change of opinion and cannot be sustained. So far as the assessment years 1999-2000 and 2000-01 are concerned, learned counsel for the petitioner fairly admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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