TMI Blog2010 (2) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... il 1, 1982. The four periods in question are obviously covered by this entry. - 1351 of 2008 - - - Dated:- 26-2-2010 - SUDHIR KUMAR KATRIAR AND KISHORE KUMAR MANDAL , JJ. SUDHIR KUMAR KATRIAR J. This writ petition seeks the following reliefs: (a) To quash notice under section 27 of the Bihar Finance Act, 1981 (annexure 4), for recovery of sales tax during pendency of review petition, pending disposal before the Commercial Taxes Tribunal. (b) To quash order passed by the Commercial Taxes Tribunal dated April 15, 2004, which is contrary to law and as such wrong, illegal, and without jurisdiction. (c) Direction to the Tribunal to dispose of the petitioner's review petition and also reference petition pending before it for more than three years. A brief statement of facts essential for effective adjudication of the issues involved in this matter may be indicated. The petitioner is a public limited company engaged in marketing, distribution, and sales of a certain product known as vacuum cleaner. We are not concerned with its other items. The present writ petition is with respect to the assessment years 1990-91, 1991-92, 1992-93 and 1993-94. It is evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not like to defer its hearing on this ground, and proceed to dispose of the writ petition by a common judgment covering the four periods. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the notification dated July 27, 2000 (annexure 6), is prospective in nature and, therefore, wholly inapplicable to the facts and circumstances of the present case. The learned Additional AdvocateGeneral has not joined issues with the petitioner on this count and has indeed submitted that the notification on the very face of it is prospective in nature and, therefore, inapplicable to the facts and circumstances of the present case. He next submits that the assessing authorities have, during the five years preceding the ones in question taxed at the rate of 8 per cent throughout the State of Bihar. There cannot, therefore, be any justification for departure for the periods in question. He further submits that the situation is accentuated by the fact that, for the four periods, i.e., assessment years 1987-88 to 1990-91, the Jamshedpur Circle has taxed the petitioner at the rate of 12 per cent, which was set aside by the Ranchi Bench of the Patna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n us through the provisions of the Act and the relevant circulars to persuade us to hold that one and only one view is possible, namely, the petitioner has to be taxed at the rate of 12 per cent, and, therefore, the principles of law, and the judgments cited by learned counsel for the petitioner, are inapplicable to the facts and circumstances of the present case. He relies on the judgment of a Division Bench of this court in Spic Phi Seeds Ltd. v. State of Bihar reported in [2005] 142 STC 241; [2005] 3 PLJR 470. He lastly submits that the petitioner's case is covered by entry No. 81 of the notification under section 12 and, therefore, cannot be treated to be an unspecified item within the meaning of section 12 of the Act. The learned counsel for the petitioner has in reply submitted that this writ petition is maintainable. He also submits that the very justification for the State Government in issuing the aforesaid notification dated July 27, 2000 (annexure 6), was to clear the doubt which had arisen in the minds of assessees as well as the taxing authorities. We have perused the materials on record and considered the submissions of learned counsel for the parties. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow: 11. Point or points in the series of sales at which the sales tax shall be levied. (1) The sales tax on goods shall be levied only at that point or points in the series of sales as may be specified by the State Government by a notification published in the Official Gazette. (2) Where by a notification published under sub-section (1), the State Government specifies in respect of any goods, class or description of goods that the sales tax shall be levied at the first point of sale in Bihar either by an importer, or a manufacturer or a wholeseller, subsequent sale of the same goods shall not be levied to tax, if the dealer making the subsequent sale produces before the prescribed authority under section 17, the original copy of cash memo, or invoice or bill issued to him and files true and complete declaration in the form and in the manner prescribed. (3) Where by a notification published under sub-section (1) the State Government specifies in respect of any goods or class or description of goods that the sales tax shall be levied at more than one point or on all the points, the amount of sales tax paid at each preceding stage of sale shall be adjusted against the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chines including agricultural machineries and machines, spare parts and accessories thereof worked by electricity, steam, diesel or petrol and other agricultural machineries and implements and spare parts thereof worked by human and animal power excluding those exempted under section 6 of the Bihar Sales Tax Ordinance, 1977. The question whether or not the product in question has to be taxed at the first point, or a later point, does not arise for our determination and, therefore, entry 33 of the notification under section 11 is not relevant for adjudication of the issue in hand. It is evident on a plain reading of section 12 of the Act that all products shall be taxed at the rate of eight percentum of the taxable turnover of the assessee, excepting products which have been decided by the State Government to be taxed at different rate(s) and for which separate notification(s) has been issued in terms of the proviso to section 12(1) of the Act. The aforesaid notification under section 12 is evidently issued in terms of the proviso to section 12(1) of the Act. On a perusal of the different entries therein, we are of the view that the product in question is covered by entry 81 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly a case with respect to the same product in the undivided State of Bihar. It appears to us on a perusal of the judgment that the petitioner was initially taxed at the rate of eight percentum of its turnover. In view of an audit report to the effect that the petitioner ought to have been taxed at the rate of 12 percentum, the assessment proceedings were reopened and taxed at the rate of 12 percentum. This court allowed the writ petition on two grounds, namely, an audit report can at best be another opinion which cannot, in the scheme of the Act, be the basis to reopen a concluded assessment proceeding. The same cannot be treated to be a source of information within the meaning of section 19(1) of the Act. There must be fresh materials justifying reopening of assessment proceeding. The relevant portion of the judgment is reproduced hereinbelow (pages 469 and 470 in 119 STC): From the aforesaid finding of the Full Bench of this court and Division Bench of this court; and that of the honourable Supreme Court I can come to a definite conclusion and hold: (i) A mere change of opinion and/or second thought by any authority on the same set of facts and materials on record ..... 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