COMMISSIONER OF TRADE TAX Vs. ARIHANT TRADING COMPANY

JUDGEMENT

(1.) PRESENT revision under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, 'the Act') is directed against the order of the Tribunal dated January 7, 2000 relating to the assessment year 1989 -1990 under the U.P. Trade Tax Act, 1948.

(2.) DEALER /opposite party (hereinafter referred to as, 'the dealer') was carrying on the business of coal. Coal was imported through truck as well as railway. During the course of assessment proceedings, dealer claimed that the freight was paid directly by the purchaser to the railway and at the time of taking the delivery of the goods, dealer paid freight, which would not be part of the turnover. However, in respect of the coal imported through the truck, freight incurred for bringing the coal at the destination, the same was included in the turnover. It was claimed that on the basis of orders from the purchasers, the coal was imported through the railway and the dealer had only received the price of coal and commission and freight was directly paid to the railway at the time of taking the delivery of the goods, therefore, it would not be part of the turnover. The assessing authority adjudicated this issue in detail and vide its order dated August 31, 1992 accepted the claim of the dealer and held that the freight would not be part of the turnover. Subsequently, the assessing authority initiated a proceeding under Section 21 of the Act on the ground that the freight would be part of the turnover and vide order dated September 15, 1994, levied the tax on the amount of freight. First appeal filed by the dealer was allowed in part. Dealer filed second appeal before the Tribunal. The Tribunal by the impugned order, allowed the appeal and quashed the order passed under Section 21 of the Act. The Tribunal held that the tax had been levied only on account of change of opinion, which was not permissible in law.

(3.) LEARNED Standing Counsel submitted that the order of the Tribunal is erroneous, inasmuch as this Court in various cases, held that inward freight would be part of the turnover. I do not find any substance in the argument of learned Standing Counsel. It is not the case of the original assessment. In the present case, in the original assessment the issue with regard to the freight had been adjudicated in detail and the assessing authority held that the freight which was paid directly by the purchasers to the railway while taking the delivery of the goods, would not be part of the turnover, inasmuch as, dealer had only received commission from the purchasers. Whether the view of the assessing authority in original assessment order was correct or incorrect, is the different issue. The question is that once in the original assessment, a issue relating to freight had been adjudicated, whether on the basis of same material, a different view can be taken in the proceeding under Section 21 on account of change of opinion. Perusal of the assessment order reveals that on the same facts, the assessing authority had reviewed its earlier order on account of change of opinion and had held that the freight would be the part of the turnover. It is settled principle of law that the proceeding under Section 21 of the Act cannot be initiated and the tax under Section 21 of the Act cannot be levied merely on account of change of opinion. Thus, I do not find any error in the order of the Tribunal and is, accordingly, upheld.