GUJARAT CO OPERATIVE MILK MARKETING FEDERATION LIMITED Vs. ASSISTANT COMMISSIONER ASSESSMENT TRADE TAX

JUDGEMENT

(1.) The petitioners are dealers of chocolates. The turnover of chocolate was subjected to four per cent of tax in the assessment proceedings. Subsequently on the basis of the judgment delivered by the Supreme Court in the case of Pappu Sweets and Biscuits v. Commissioner of Trade Tax [1998] 111 STC 425 ; STI 1998 SC 97 notices under Section 22 of the U.P. Trade Tax Act, 1948, (hereinafter referred to as "the Act") have been issued in some of the writ petitions on the ground that the toffee is taxable as an unclassified item and is not sweetmeat. In some writ petitions notices under Sections 21 and 22 are under challenge. In other writ petitions provisional assessment notices and proceedings have been challenged on the ground that toffee/chocolate is taxable as sweetmeat and not as unclassified item.

(2.) Since common questions of law are involved, all these writ petitions were heard together with the consent of counsel for both the parties and are being disposed of by the common judgment.

(3.) The petitioners are dealers of toffee. The matter was argued with reference to writ petition No. 101 of 2000 by the counsel for both the parties ; hence it is necessary to give the fact of that writ petition only. The petitioner, is a co-operative society having its registered office in the State of Gujarat and the petitioner has its principal place of business in the State of Uttar Pradesh. It appears that the original assessment for the assessment year 1996-97 was framed by the Assistant Commissioner (Assessment) by the order dated December 31, 1998, a copy where of has been filed as annexure 1 to the writ petition. A perusal of the assessment order for the assessment year 1996-97 shows that the question of rate of taxability of chocolate was very much debated before the assessing officer. Reliance was placed upon an order passed by the Commissioner under Section 35 of the U.P. Trade Tax Act in the case of M/s. Hindustan Coco Products Ltd., wherein the Commissioner held that chocolate is a confectionary. Reference was also made to the judgment of the Supreme Court in the case of Pappu Sweets and Biscuits [1998] 111 STC 425 ; STI 1998 SC 97 by the assessing officer in its assessment order. After considering the entire material, the assessing officer held that the petitioner has rightly accepted the tax liability on the turnover of chocolate at five per cent including surcharge. Its order became final. Subsequently, the impugned notice dated December 29, 1999 was issued under Section 22 of the Act for the assessment year 1996-97 on the ground that the tax was wrongly imposed at the rate of four per cent while it should have been imposed at the rate of 10 per cent. A copy of the notice has been filed as annexure 2 to the writ petition. Challenging the validity of the said notice, the present writ petition was filed for quashing the notice issued under Section 22 of the Act. It also appears that for the assessment year 1994-95 notice under Section 21, filed as annexure 9 to the writ petition, was issued on identical facts, namely that in view of the judgment of the Supreme Court in the case of Pappu Sweets and Biscuits [1998] 111 STC 425 ; STI 1998 SC 97 toffee/ chocolate should be taxed as unclassified item and not as sweetmeat. Hence the writ petition.