TMI Blog2017 (5) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... convinced that there is some illegality or misuse in the utilization of the said Form-F - thus, the necessity to reassess the petitioner if any turnover of the petitioner has escaped assessment or if any wrong tax exemption in respect of the consignment covered by the aforesaid Form-F cannot be ruled out. It is not a fit case for interference in exercise of writ jurisdiction - petitioner is open to raise issues with regard to its bonafidy and the grant of tax exemption against the aforesaid Form-F etc. before the Assessing Authority - petition dismissed - decided against petitioner. - Writ Tax No. 133 of 2016 - - - Dated:- 3-5-2017 - Hon'ble Pankaj Mithal And Hon'ble Vinod Kumar Misra, JJ. For the Petitioner : Suyash Agarwal,R.R. Agrawal For the Respondent : C.S.C.,U.K.Pandey ORDER Heard Sri Rakesh Ranjan Agrawal, learned Senior Counsel, assisted by Sri Suyash Agarwal, learned counsel appearing for the petitioner and Sri C.B. Tripathi, learned Standing Counsel for the respondents. The pleadings exchanged between the parties have also been perused. The petitioner is carrying business of purchase and sale of non ferrous metal scraps, utensil et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been granted. Moreover, in granting the permission the objections of the petitioner have not been considered. Sri C.B. Tripathi, learned Standing Counsel on the other hand contends that under Section 29(7) of the VAT Act, the Additional Commissioner is only supposed to grant permission for the reopening of the assessment if it is beyond the prescribed period of limitation. In granting such permission he may not necessarily look into each and every aspect of the objection in detail and mere recording of his satisfaction that it is a fit case for reassessment even is sufficient. The Assessing Authority was possessed of sufficient material in the form of letter of the Joint Commissioner Special Investigation Branch Commercial Tax for the formation of opinion as to the reason to believe for reassessment. In short the controversy herein this petition is whether the Additional Commissioner is justified in granting permission under Section 29(7) of the VAT Act to the Assessing Authority to reassess the petitioner under the above facts and circumstances of the case. Section 29(1) of the VAT Act authorises the Assessing Authority to assess or reassess a dealer to tax acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the satisfaction by the Commissioner that it is a fit case for reassessment. In granting permission or authorisation to the Assessing Authority to reassess the dealer, the Commissioner does not act as an adjudicating authority and in effect does not exercise any judicial power in the strict sense. He only discharges the function of an administrative authority subject to his satisfaction on the basis of the reasons recorded by the Assessing Authority or otherwise that the case is fit enough for reassessment even though much time has elapsed. In such a situation, no detailed or reasoned order is necessary while granting authorisation for reassessment but the order should reflect application of mind in recording the satisfaction for authorising reassessment. It is important to point out that under the VAT Act the Assessing Authority has no substantive power to review an order passed by him except to reassess the dealer. The reassessment of the dealer is in the form of a limited review subject to the conditions specified under Section 29 of the VAT Act. Thus, conceptually reassessment proceedings are not in the nature of a review and have to be undertaken and completed strictl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this court. Sri Agrawal has argued that the disputed Form-F is actually not fake and that the petitioner has no concerned if it was issued by the department to some other dealer and it has been used by the consignee agent inasmuch as there is no finding or even an allegation that the petitioner and the consignee agent are in collusion or that the petitioner has no role in the misuse of the said Form-F. To buttress his argument Sri Agrawal has placed reliance upon 1994 U.P.T.C. 130 M/s Bharat Iron Stores Vs. Commissioner of Sales Tax wherein a learned Single Judge of this court has held that where sales are made against Form 3-A in the absence of finding that there was any negligence on part of the assessee in accepting the Form or that he had not acted in a bona fide manner, he cannot be denied the benefit of Form 3-A under the U.P. Sales Tax Act, 1948. A Single Judge of this court in 1995 U.P.T.C.-4 M/s Indra Steels Private Ltd. Ghaziabad Vs. Commissioner of Sales Tax held that a dealer cannot be burdened with the liability to find out that the party issuing Form 3-A was not authorised to issue it unless the Form itself is shown to be fake/Furzi or there is any collus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider it to be a fit case where the permission granted by the impugned order dated 11.01.2016 by the Additional Commissioner under Section 29(7) of the VAT Act can be said to be arbitrary, unreasonable or without jurisdiction. In regard to the submission that the objections of the petitioner were not considered before granting the permission it is tirite to mention here that the petitioner was given notice on 14.09.2015 to submit his explanation. The explanation was submitted by the petitioner and he was heard through counsel as well. The petitioner in the explanation accepted that on enquiry regarding the disputed Form-F it had come to its knowledge that there may be some irregularity in using the said Form but that is solely attributable to the consignee agent. Therefore, the petitioner has even lodged a first information report against him for the misuse of the said Form if any. The moment the petitioner on his own verification lodges an FIR against consignee agent regarding the use of the disputed Form-F, it is apparent that to some extent the petitioner is also convinced that there is some illegality or misuse in the utilization of the said Form-F. In these circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
