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TMI Blog2019 (8) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... mbuja Cement Limited v. State of Chhattisgarh [2018] 55 GSTR 420 (Chhattisgarh), which in turn formed the basis for passing the order dated August 9, 2017 in the batch of cases relating to Ultra Tech Cement Limited. For the purposes of convenience as well as since reliance has been placed on the paper-book of Ambuja Cements Limited, the same has formed the basis for adjudication of this appeal. 4. Writ application was filed by Ambuja Cement Limited challenging a communication dated June 16, 2014 (annexure P/1) issued by the Commissioner, Commercial Taxes, Chhattisgarh to the Deputy Commissioners, indicated in the said communication, wherein a direction was issued that keeping in mind the amendment which has been brought about to the Chhattisgarh Entry tax Act, 1976 (hereinafter referred to as "the Act, 1976") with effect from April 1, 2014, especially in relation to the definition which has given to the word "market value", the assessments made earlier and closed for varying periods were required to be reopened under section 22(1) of the Chhattisgarh Value Added tax Act, 2005 (hereinafter referred to as "the Act, 2005"). 5. Based on annexure P/1, i.e., direction of the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 435 in 55 GSTR) : "18. The M. P. High Court in the matter of Laduram Ramniwas v. State of M.P. [1996] 102 STC 240 (MP) while dealing with section 19(1) of the M. P. General Sales tax Act, 1958, which is parimateria provision to section 22(1) of the Act, 2005, and which also provides reassessment by employing the words 'for any reason', held that such a provision has a restrictive meaning. The M. P. High Court relying upon the earlier decision of that court in the matter of Firm Janta Hardware Stores v. B. S. Parihar, Assistant Sales Tax Officer [1963] 14 STC 67 (MP) narrated with approval the following paragraph of that judgment which states as under : '. . . But the requirement after the amendment is of a certainty of there being for any reason an under-assessment or escaped assessment. There must be a causative and rational connection between the reason stated and the consequence of under-assessment or escaped assessment. The result of the amendment actually effected is that proceedings under the section cannot be initiated merely on the chance of under-assessment or escaped assessment or assessment at a lower rate or a wrong deduction being established in those p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l tax Act, 1994, and this court held that concluded assessment can be reopened, in other words, reassessment can be done on the grounds mentioned therein on satisfaction of the condition precedent being 'for any other reason'. 22. Their Lordships of the Supreme Court in the matter of Commissioner of Income-tax v. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC) ; [2010] 2 SCC 723 have held that the concept of 'change of opinion' is an inbuilt safeguard in all reassessment proceedings, otherwise power to reassess would become power to review and it would give arbitrary power to the assessing officer to open concluded assessment on mere change in opinion. Their Lordships observed as under (para 6, page 564 in 320 ITR) : '5. On going through the changes, quoted above, made to section 147 of the Act, we find that, prior to the Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under the above two conditions and fulfilment of the said conditions alone conferred jurisdiction on the assessing officer to make a back assessment, but in section 147 of the Act (with effect from April 1, 1989), they are given a go-by and only one condition has remained, viz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) ; [1975] 4 SCC 360).' 24. Their Lordships further held in Aryaverth Chawl Udyoug's case [2016] 91 VST 1 (SC) ; [2014] SCC OnLine SC 1205 that subsequent change in law according to which the assessment proceedings were conducted, cannot constitute 'change in opinion' of the asses sing authority so as to initiate reassessment proceedings, and held in paragraph 35 as under (para 34, page 16 in 91 VST) : '35. A perusal of the show-cause notice and also the order issued by both, the Additional Commissioner while exercising jurisdiction under section 21(2), and the assessing authority while re-opening assessment proceedings under sections 21(1) and 21(2) would clarify that both the authorities have only noticed and reiterated the con tents of the circular. The assessing authority has substantiated its "reason to believe" by placing reliance on the change in position of law under section 15(c) of the Act, as contained in the circular and thus, issued the show-cause notice. It is trite that subsequent change in law according to which the assessment proceedings were conducted, cannot constitute "change in opinion" of the assessing authority so as to initiate re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Act, 2005 as the ingredients for the said section is not satisfied. 12. For the above reasons, the writ applications came to be allowed and both the communication issued by the Commissioner, Commercial Tax, dated June 16, 2014 and the subsequent notices issued for reassessment came to be quashed. It is in this background that appeals have come to be filed by the State of Chhattisgarh. 13. The stand of learned Additional Advocate General representing the State is that the notification giving a definition to the word "market value" under section 2(fff) of the Amendment Act, 2014 was only clarificatory in nature and it is not an amendment as such. This clarification was warranted and necessary only to ensure due clarity to a provision which had already talked about the concept of "market value" while defining the word "value of goods" in section 2(l) of the Act, 2005. Section 2(l) of the Act, 1976 is reproduced hereinbelow since reliance has been placed thereon : "2(l) 'Value of goods' in relation to a dealer or any person who has effected entry of goods into a local area shall mean the purchase price of such goods as defined in (clause (q) of section 2 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch can permit the assessing authority to exercise power under section 22(1) of the Act, 2005. 18. We also notice that the amendment of 2014 is unworkable unless the State notifies the market value of "such goods" which has been done only on July 1, 2014. We therefore repel the argument made on behalf of the State that the definition so given to the word "market value" is only clarificatory and that by itself can be used as the basis for reopening the assessments which have attained finality prior to the amendment dated April 1, 2014. 19. The view therefore taken by the learned single judges that since the Commissioner, Commercial Taxes himself in his communication to the Deputy Commissioners had clearly indicated that the assessments will have to be reopened under section 22(1) of the Act, 2005 because of the amendment brought about with effect from April 1, 2014, the State cannot be permitted to turn around or resile from that ground as to why notices for reassessment was being issued. 20. To sum, therefore, keeping in mind the settled principles of law the appellants/State authorities have no case to interfere with the view and the decisions rendered by the learned single judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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