COMMISSIONER TRADE TAX Vs. DHAMPUR SUGAR MILLS LTD

JUDGEMENT

(1.) By means of present revision under Section 11 (1) of the U.P. Trade Tax Act, hereinafter referred to as the Act, the Commissioner of Trade Tax has challenged the order of the Tribunal dated 29th March, 1995, passed on an application under Section 22 of the Act filed by the assessee/respondent. The Tribunal by the impugned order has allowed the application under Section 22 of the Act for the assessment year 1985-86 on the ground that there was no material before the assessing authority on the date of issuance of the notice under Section 21 of the Act to believe that the tax on the turn over amounting to Rs. 3,88,182.13 in respect of manufacturing bran sugar, though realized by the assessee, has escaped assessment.

(2.) The facts of the present case in brief are as follows :- The assessee carried on the business of manufacture and sale of sugar, shira, bran sugar, straw board etc. The original assessment for the assessment year 1985-86 was completed on 11th June, 1989. Subsequently on receipt of certain information the proceedings under Section 21 of the Act was initiated to tax the escape turn over of bran sugar sold to M/s Shyam Lal Mahendra Kumar, Muzaffarnagar. The assessee during the course of original assessment proceedings came out with a case that the said sale was exempted and no tax was realized.

(3.) In the reassessment proceedings, the Sales Tax Officer examined the account books of the dealer with respect to the aforesaid transactions and found that the aforesaid transactions is recorded in the account books of the dealer. The dealer has realized the sales tax on the said turn over from the purchasing dealer but has not deposited the tax thereon. No explanation was given by the dealer/opposite party in reply to show cause notice issued under Section 21, on that point. The only reply given that the assessee has filed a writ petition in the High Court challenging the validity of the reassessment proceedings and the matter is pending before the High Court. It may be noted here that that the dealer/opposite party had filed a writ petition in the High Court and obtained stay order, which was subsequently dismissed. On these premises the assessing authority by the order dated 8th February, 1991 levied tax on the turnover of Rs. 3,88,182.13 of bran sugar. The said order was confirmed by the appellate authority in the appeal by the order dated 3rd April, 1991. The order of the first appellate authority was challenged before the Tribunal. The Tribunal by its order dated 25th June, 1992, dismissed the appeal. Thereafter an application for rectification of the mistake purporting to be under Section 22 of the Act was filed which was also dismissed by the Tribunal by the order dated 10th February, 1995. Subsequently, another application purporting to be under Section 22 of the Act for rectification of the mistake on identical pleas was filed which has been allowed by the Tribunal, this time, by the order dated 29th March, 1995. The Tribunal has set aside the proceedings under Section 21 of the Act.