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2015 (10) TMI 1108 - ALLAHABAD HIGH COURT

2015 (10) TMI 1108 - ALLAHABAD HIGH COURT - TMI - Levy of tax - Escape of certain items from assessment of tax - Held that:- In the earlier and subsequent Assessment Years, after due discussion on the issues, which is foundation of the impugned authorisation order and the notices; the Assessing Authority, the Additional Commissioner and the Tribunal have themselves accepted the explanation of the petitioners and held that the chemical formula in question cannot be applied as a matter of rule, bu .....

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nder Section 21 of the Act issued by the Assessing Authority are without jurisdiction and, therefore, deserve to be quashed. - Decided in favour of assessee. - Writ Tax No. - 464 of 2010, Writ Tax No. 478, 387, 520 of 2011 - Dated:- 4-9-2015 - Hon'ble Tarun Agarwala And Hon'ble Surya Prakash Kesarwani, JJ. For the Petitioner : Kunwar Saksena For the Respondent : C.S.C. JUDGMENT (Per: S.P. Kesarwani, J.) 1. Heard Sri Krishna Agrawal and Sri Piyush Agrawal, learned counsel for the petiti .....

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it Tax No.520 of 2010 relates to Assessment Year 2003-04 (U.P. and Central). Writ Tax No.1537 of 2010 relates to Assessment Year 2005-06 and Assessment Year 2006-07 (U.P.). In the afore-noted first three writ petitions, the petitioner is the manufacturer of zinc oxide. It used zinc ingots, zinc dross and zinc scrap as raw material to manufacture zinc oxide. Its assessment was completed, in which, Assessing Authority accepted the production figures. Subsequently, the Assessing Authority sent a pr .....

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has been shown and thus, some quantity of zinc oxide has escaped assessment to tax. 4. The petitioner of writ petitions mentioned above at serial No.4 & 5 is engaged in manufacture and sale of Red Lead and Lead Ingot, from lead and oxygen as raw material. The original assessment orders were passed, in which, the production as disclosed by the petitioner was accepted by the Assessing Authority. Subsequently, Assessing Authority sent a proposal to the Additional Commissioner, Grade-I, Commerc .....

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the two sets of petitions, the authorisation under provision of 21(2) of the Act was granted by the Additional Commissioner, and thereafter the Assessing Authority issued notices under Section 21 of the Act. Aggrieved with the said orders of the authorisation and the notices under Section 21 of the Act, the petitioners have filed the present petitions praying to quash the same. 6. Learned counsel for the petitioners submits that petitioner of the first three writ petitions has used scrap to man .....

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erve to be quashed. Learned counsel has also referred to the orders passed by the Assessing Authority, the Appellate Authority in the previous and subsequent assessment years to support his submissions. He submits that there is no dispute with regard to the formula referred by the respondents but that cannot be theoretically applied without considering the quality of raw material purchased by the petitioners to manufacture the final product. 7. Learned special counsel for the respondents submits .....

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iated by the Assessing Authority is based on reasons to believe supported by relevant materials for formation of the belief. He submits that if the materials are relevant giving rise to prima facie inference that some part of turnover of the petitioners has escaped assessment to tax, then jurisdiction of the Assessing Authority to initiate reassessment proceedings cannot be questioned in a writ jurisdiction under Article 226 of the Constitution of India. The question as to whether the material i .....

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missioner of Income Tax, Madras, 1991 U.P.T.C.-918 (paras 12 & 19), M/s Shree Bhawani Paper Mills Ltd. Vs. State of U.P. and others, 2012 NTN (Vol.48)-99, (para-20), Kalpana Kala Kendra, Kanpur Vs. Sales Tax Officer, Circle 20, Kanpur, 1989 U.P.T.C.-597 (All.) (para-12), Moser Baer India Limited Vs. State of U.P. and others, 2014 NTN (Vol.55)-26 (All.) (para-35). 8. We have carefully considered the submissions for the learned counsel for the parties and perused the records. 9. We find that i .....

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ales register, purchase register, stock register of raw material, finished goods, trade goods and purchase vouchers and sale invoices, and also submitted complete details of their manufacturing and trading results. The Assessing Authority thoroughly examined the books of accounts. He also examined the monthly details of manufacture and stock particulars submitted by the petitioners. After examination, he recorded a finding that no adverse material has been found and the petitioners have maintain .....

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21(2) of the Act for the Assessment Year 2002-03, which was refused by the Additional Commissioner, vide order dated 24th March 2009 (R.A.-1 in Writ Tax No.464 of 2010) holding that it was change of opinion. For the Assessment Year 2006-07, the Assessing Authority determined production disbelieving the quantum of production on the same set of reasoning, on the basis of which, reassessment proceedings had been initiated for the assessment years in question. Aggrieved with the assessment order, th .....

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uthority again disbelieved the production of zinc oxide for the same set of reasonings. Being aggrieved, the petitioner preferred Appeals No.69 of 2011 and 70 of 2011 for A.Y. 2007-08 (U.P. and Central), which were also allowed by the Additional Commissioner, Grade-II (Appeal), Commercial Tax, Manpuri, vide order dated 30th November, 2011. Being aggrieved, the department preferred Second Appeals No.122 of 2012 and 123 of 2012, which were dismissed by the Member, Commercial Tax Tribunal, Bench-I, .....

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