TMI Blog2014 (7) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceedings or in the reasons recorded in the impugned order - reasons recorded in the impugned order are not sufficient to form an opinion that the turnover of the peti tioner has escaped assessment. It is based on conjecture and surmises. The sanction granted by the impugned order to reopen the assessment cannot be allowed to stand. - Decided in favour of assessee. - Writ Tax No. 1208 of 2009 - - - Dated:- 29-4-2013 - PRAKASH KRISHNA AND RAM SURAT RAM (MAURYA), JJ. The judgment of the court was delivered by PRAKASH KRISHNA J. This is second round litigation in the High Court. Earlier the petitioner had filed Writ Petition No. 483 of 2002 which was decided on July 13, 2007 (S. K. Traders v. Additional Commissioner, Grade-I, T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner against the above proposal of the assessing authority. Initially the permission was granted by the respondent No. 2 which was challenged in the earlier writ petition referred to above, successfully. After remand by the High Court, now again permission to reopen the assessment has been granted by the impugned order dated March 23, 2009 on the ground that broken glass is waste product . Such broken glass comes out from the factory while filling the bottles. These broken glasses are returned to the dealers who had supplied the glass bottles which they in turn sold them to Kabaries and as such, the pur chases of broken glass from Kabaries should be treated as waste product . Heard Sri Kunwar Saxena along with Sri Krishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the peti6 tioner has made the purchases of broken glass from Kabaries and as such in view of the judgment of the apex court in the case of Hotel Balaji v. State of Andhra Pradesh [1993] 88 STC 98 (SC) and as of learned single judge in the case of Commissioner of Sales Tax, U.P. v. Kabar Khana, Turrmanpur, decided on October 12, 1984, the petitioner is liable to tax under the noti fication dealing with old, discarded, unserviceable plastic and glass goods being entry No. 32. Further reliance was placed on a Division Bench deci sion of this court in Lajja Ram Mahesh Dutt, Agra v. Commissioner of Sales Tax, Uttar Pradesh, Lucknow [1975] 35 STC 450 (All); [1974] UPTC 472, wherein it has been held that burden to prove a particular fact lay upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from any other source. The purchases of broken glass from Kabaries are waste product. Now, we have to consider as to whether on the basis of the said rea soning, it cannot be said that the turnover of the petitioner has escaped or not. Under section 21 of the Act, action for taking reassessment proceedings can be taken where the turnover of a dealer has escaped assessment, not necessarily the escapement of assessment to tax was due to concealment by the assessee and ignorance on the part of the assessing officer is good ground to reopen the assessment, if the turnover has escaped assessment as held in the case of Shyam Babu Vaishya Co. v. Assistant Commis sioner, Trade Tax, Khand-2, Banda [2005] 139 STC 397 (All); [2004] UPTC 210. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon any material. Be that as it may, the petitioner is a trader and is not a manufacturer 12 actual or deemed and his case that he has purchased the broken glass from Kabaries, has not been disputed either in the original assessment proceed ings or in the reasons recorded in the impugned order. A Division Bench decision of this court in the case of J J Enterprises v. 13 Commissioner, Trade Tax, U.P., Lucknow [1996] 102 STC 51 (All); [1996] UPTC 471, has held that there is distinction between waste product and waste material . Relevant paragraph is reproduced below (page 53 in 102 STC): Shri Divedi, learned Additional Advocate-General, relying upon a decision of the learned single judge in the case of Commissioner of Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n October 12, 1984. It is a short judgment having six paragraphs in all. Learned single judge of this court without giving any its own reasoning has allowed the revision of the Department ex parte by simply observing that the Tribunal has committed error in ignoring the aforesaid notification dated September 7, 1981. The relevant paragraphs are reproduced below: 4. None has appeared on behalf of the assessee. 5. I have given my careful consideration to the contentions raised by the standing counsel appearing for the Department and I am of the opinion that the Tribunal committed an error in ignoring the aforesaid which clearly fixes the liability of sales tax of old and dis carded and unserviceable goods on sales to consumers. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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