TMI Blog2014 (5) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... le of res - judicata is not applicable in tax matters relating to different assessment years, the reasons on which reassessment was set aside are the same - The report of the audit party annexed to the writ petition was in respect of two assessment years, this Court has already taken the view that the order u/s 21 (2) amounted to change of opinion on which reassessment could not be made - Respectfully following the reasoning, on which the writ petition filed by the same petitioner was allowed, on the same issue in respect of assessment years 1999-2000 and 2000-01 in respect of the same assessee, It is found that the order in the present case under the proviso to Section 21(2) authorising the reassessment is also liable to be set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the re-assessment in pursuance of the impugned notice." It is submitted by learned counsel for the petitioner that for the assessment year 1998-99 the assessing authority imposed tax on the sale of miscellaneous scrap of Rs.23,99,223/- as old and discarded material at 5%. An audit objection was reported in respect of assessment years 1998-99; 1999-00 as well as 2000-01 that the tax applicable to the broken glass, polly scrap is 10%. Although the assessing authority in his note forwarded by the audit party did not agree and expressed his opinion that under notification dated 17.2.2000 these items will attract tax at 5%, the matter was referred for sanction under Section 21 (2) for reassessment as the period of limitation had expired. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner is a registered dealer under the U.P. Trade Tax Act as well as under the Central Sales Tax Act. Apart from the sales of manufacturing goods, the petitioner had also sold waste Polyfilm, waste broken glass, waste scraps and rejected PP Seals etc. which had been damaged in the course of transit, loading, unloading, etc. In the assessment years 1999-2000 and 2000-2001, the petitioner had admitted the tax at the rate of 5% on the sales of such goods. The assessing authority in the assessment order passed under the U.P. Trade Tax Act for both the assessment years 1999-2000 and 2000-2001 had levied the tax at the rate of 5% admitted by the petitioner on the aforesaid goods. 5. After passing of the assessment order, it appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val under the proviso to Section 21 (2) of the Act vide order dated 21.3.2006. Thereafter, the assessing authority issued notices under Section 21 of the Act on 22.3.2006 for the assessment years 1999-2000 and 2000-2001 both under the U.P. Trade Tax Act and under the Central Sales Tax Act. Under the U.P. Trade Tax Act for both the aforesaid years, the notices have been issued on the ground that in the original assessment orders, the turnover of P.V.C. Garbage, etc. had been assessed to tax at the rate of 5% while it should be taxed as an unclassified items at the rate of 10%. Further it has been stated that outward freight and the sale promotion would be the part of the turnover in view of the decision of the Allahabad High Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing material the view of the assessing authority to re-open the proceeding that such goods are liable to tax as an unclassified items is only on account of change of opinion." Shri S.P. Kesarwani appearing for the State would submit that in the matters of tax each assessment year has to be treated as separate and that the principles of resjudicata do not apply in respect of another assessment year. He submits that there was no discussion in the assessment order regarding the rate of tax on the items and that opinion of the Addl. Commissioner is not based on the report of the audit party. The opinion has been formed independently for which he relies upon the contents of the counter affidavit of Shri Rakesh Saran, Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority had correctly applied rate of tax at 5% on the same items, was subject matter of consideration both in the assessment years 1999-00 and 2000-01, which was to decide earlier and in respect of assessment year 1998-99. For the arguments sake, even if we accept that the audit report is not the basis of reopening assessment, the reasoning on which Division Bench held that the reassessment in the case of applicability of the rate of tax on waste polythene, waste broken glass, waste scrap and rejected PP Seals, which will amount to change of opinion, will cover the field. Though the principle of resjudicata is not applicable in tax matters relating to different assessment years, the reasons on which reassessment was set aside are the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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