TMI Blog2022 (4) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... e of opinion or not? HELD THAT:- It is admitted between the parties that the applicant is a proprietorship firm and is selling the item as mentioned in the registration certificate. While granting registration, the goods have been mentioned as gambier (white kaththa ), which is not disputed. In the disputed year applicant had purchased and sold kaththa. While passing the original assessment order, the assessing authority on the basis of material as well as documents available on record and after due verification has assessed the tax @ 4 %. Therefore, on the basis of subsequent order passed by this Court, the re-assessment proceeding has been initiated and permission was granted and thereafter the assessment order was passed imposin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IYUSH AGRAWAL, J. 1. The present revisions have been filed against the order dated 30.11.2015 passed by Commercial Tax Tribunal, Varanasi in Second Appeal No. 156 and 157 of 2014 (A.Y. 2006-07 and 2007-08) in which following questions of law have been framed:- A. Whether in light of judgement of Hon ble S.C. in Mathuram Agarwal case it is right to exclude Gambier from the category of item kaththa, when the item Kaththa is not defined under U.P. Trade Tax Act, 1948? B. Whether the Gambier (Uncaria Gambier) is known as WHITE KATHTHA or not? C. Whether the category Kaththa under the U.P. TRADE TAX ACT, 1948 is not divided in to two groups that is BLACK KATHTHA and second the WHITE KATHTHA. D. Whether the order passed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visionist on the basis of changed opinion as no new material or evidence has brought on record for initiating the proceeding of re-assessment. He submits that in view of the judgement of this Court in the case of M/s Aryaverth Chawal Udyog and others Vs. State of UP and others, 2008 Law Suit (All) 2155, the re-assessment proceedings under Section 21 (2) of the Act cannot be initiated. 4. He further submits that gambier is treated as kaththa which is evident from the registration certificate and it has neither been modified nor been cancelled nor any action on date has been initiated against the said certificate. So the proceeding of re-assessment is bad. He further submits that rate of tax on kaththa has been specifically provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by perusal of the registration certificate that primary item which was required to be imported was gambier and not kaththa as in the registration certificate white kaththa has been mentioned in inverted commas( ) meaning thereby at the time of getting registration certificate, the dealer in its wisdom and knowledge knows that he will be trading in gambier and not kaththa . Had it not been so, the dealer must have got its registration certificate amended by getting it correct as kaththa. He further submits that it is not a case of change of opinion but it is a clear case of assessing the tax at the lower rate than what it is assessable under the Act i.e. as unclassified item because the gambier was being imported in the garb of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the applicant on the basis of subsequent judgement. The Apex Court as well as this Court, time and again, have held that completed assessment should and must not be re-opened on the basis of subsequent judgment. 9. This Court in the case of M/s Samsung India Electronics Pvt. Ltd. Vs. State of U.P. 2 Others, reported in 2017 UPTC 63 , in paragraph nos. 11, 14 15, has held as under:- 11. Further, a subsequent judgment cannot be used to reopen assessments or disturb past assessments which have been concluded. [See Para 7, Austin Engineering V. JCIT (2009) 312 ITR 70 (Guj.) Para 4 and 5, Bear Shoes 2011 (331) ITR 435 (Mad.), B.J. Services Co. Middle East Ltd. v. Deputy Director (2011) 339 ITR 169 (Uttarakhand), Sesa Goa V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee would be entitled to the benefit of Section 80HH of the Act, which view was squarely revsersed in the case of CIT Vs. N.C. Budharaja CO. (1993) 204 ITR 412/70 Taxman 312 (SC). The subsequent reversal of the legal position by the judgement of the Supreme Court does not authorize the Department to reopen the assessment, which stood closed on the basis of the law, as it stood at the relevant time. 11. This Court in the case of Assotech Realty Pvt. Ltd (supra) has held as under :- 25.In view of the above cited judgements and the principles enunciated therein, reopening of the proceeding of completed assessment in question renders bad and in colourable exercise of powers and without jurisdiction. 26.It is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X
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