INDIAN AIR GASES LTD Vs. STATE OF UP

JUDGEMENT

(1.) Heard Sri Aloke Kumar, learned Counsel for the petitioner and Sri S. P. Kesarwani, learned Additional Chief Standing Counsel.

(2.) By means of the present writ petition, the petitioner is challenging the order dated February 25, 2010, passed by the Additional Commissioner, Grade I, Commercial Tax, Varanasi Zone I, Varanasi, granting approval under the proviso to Section 21(2) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") to reopen the proceedings for the assessment years 1997-98 and 1998-99 both under the U.P. Trade Tax Act as well as under the Central Sales Tax Act, 1956 beyond the normal period of limitation.

(3.) Brief facts giving rise to the present writ petition are that the petitioner is a registered dealer under the U.P. Trade Tax Act as well as under the Central Sales Tax Act and was involved in the business of manufacture and sale of acetone gas, oxygen gas, medical oxygen gas, nitrogen gas, etc. For the assessment years 1997-98 and 1998-99 the assessing authority had passed the assessment orders on February 29, 2000 and February 19, 2001, respectively, both under the U.P. Trade Tax Act as well as under the Central Sales Tax Act. It appears that to reopen the proceedings, proposals have been sent by the assessing authority to the Additional Commissioner, Grade I, Commercial Tax, Varanasi Zone I, Varanasi to grant approval under the proviso to Section 21(2) of the Act for the assessment years 1997-98 and 1998-99. The Additional Commissioner, Grade I, Commercial Tax, Varanasi Zone I, Varanasi, after giving opportunity of hearing has passed the orders on August 14, 2003 and August 16, 2003 for the assessment years 1997-98 and 1998-99 under the U.P. Trade Tax Act as well as under the Central Sales Tax Act, respectively and granted approval to initiate proceedings beyond the period of limitation. Being aggrieved, the petitioner challenged the said orders by means of Civil Misc. Writ Petition No. 1154 of 2003. This Court vide order dated July 2, 2009 has allowed the writ petition and set aside the orders dated August 14, 2003 and August 16, 2003 on the ground that no reasons have been assigned for not accepting the case of the petitioner and there appears to be no application of mind by the authority concerned to the reply given by the petitioner. It may be mentioned here that earlier the approval was granted on the ground that the petitioner had sold empty drums on which tax has not been assessed and also certain amount towards delivery charges had not been included in the turnover and, therefore, there was escaped assessment. After the remand of the case, the Additional Commissioner, Grade I, Commercial Tax, Varanasi Zone I, Varanasi, has issued the notice on January 12, 2009 on the same grounds on which approval had earlier been granted. The petitioner filed reply on November 19, 2009. One of the submission was that the supply to the oxygen gas and acetone gas was for factor}' and, therefore, onward freight charged would not be part of the turnover. It was also submitted that the tax has been assessed on the freight charges for the assessment years 2001-02, 2002-03, 2003-04 and 2004-05 but in appeal the levy of tax on such freight has been deleted and against the orders of the first appellate authority, the appeals have been dismissed by the Tribunal. The Additional Commissioner, Grade I, Commercial Tax, Varanasi Zone I, Varanasi while exercising suo motu powers asked the assessing authority to give report on certain new issues and on receipt of the report notices dated January 15, 2010 have been issued. The petitioner filed a reply on February 15, 2010, which is annexure 19 to the writ petition and asked for the copy of the report sent by the assessing authority. Thereafter, the Additional Commissioner, Grade I, Commercial Tax, Varanasi Zone I, Varanasi, has passed the impugned orders dated February 25, 2010. In the first para of the impugned orders, the reasons given earlier for granting the approval has been mentioned and, thereafter, in the second para it is stated that on receipt of the report dated January 1, 2010 from the assessing authority, fresh notices have been issued and in pursuance thereof, learned Counsel for the assessee appeared and, thereafter, he on perusal of the record and the report sent by the assessing authority, arrived to a conclusion that it is just and expedient to grant the approval. In the impugned orders, neither the contents of the report of the assessing authority have been referred nor any reason has been given for not accepting the reply of the petitioner.