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Madhya Pradesh High Court · body

2005 DIGILAW 1169 (MP)

JAY PRAKASH ASSOCIATES LTD. v. STATE OF M. P.

2005-11-21

DIPAK MISRA

body2005
ORDER DIPAK MISRA, J. - In this present batch of writ petitions, the question of law being similar, it is thought appropriate to dispose it of by a singular order and accordingly, a common order is passed. For sake of clarity and convenience, the facts in W.P. No. 2184 of 2004 are dwelt upon herein. The petitioner is a public limited company, incorporated under the Companies Act, 1956 with its registered office at Lucknow (U.P.) and head office at New Delhi. It operates and performs various activities including road building, cement manufacturing, construction of power houses, dam constructions, hotel, etc. The Narmada Valley Development Authority (NVDA), an undertaking of the State Government of Madhya Pradesh issued a tender through Executive Engineer, Narmada Development Division No. 12 for construction of intake structure, pressure shift and power house for Indira Sagar (Narmada Sagar) Project in the State of Madhya Pradesh. The tender of the petitioner was accepted and eventually a contract was awarded to him. As per the contract, construction was to be carried out at Compartment No. 447, Chandgarh Forest Range, near Khandwa. It is contended in the petition that it is a registered dealer under the M.P. Commercial Tax Act, 1994 and therefore is also a dealer under the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (for brevity "the Entry Tax Act"). As pleaded, as per section 3 of the Entry Tax Act, tax is to be levied on the entry of goods into the local area in course of business of a dealer. The construction work is carried out in forest Range No. 447 Chandgarh, near Narmada Nagar, District Khandwa and the same does not fall within any local area as defined under the Entry Tax Act. The petitioner - company was subjected to payment of entry tax for the first time in the year 1992-93 on the foundation that the site area was covered by definition of "local area" as specified under the Entry Tax Act. Being dissatisfied with the aforesaid order, the petitioner preferred a revision before the Additional Commissioner at Indore who set aside the said order of assessing authority, holding that no entry tax is payable since there is no entry of goods into the local area. Being dissatisfied with the aforesaid order, the petitioner preferred a revision before the Additional Commissioner at Indore who set aside the said order of assessing authority, holding that no entry tax is payable since there is no entry of goods into the local area. On the basis of the aforesaid order, the petitioner got exemption from entry tax for the assessment years 1993-94, 1994-95, 1995-96, 1996-97, 1997-98, 1998-99, 2000-01 and 2001-02. Copies of orders have been brought on record as annexures P4 to P9. After the matters were finalised, for the assessment year 1999-2000, the petitioner was issued notice for assessment. It filed its reply and opposed the notice but the authorities imposed the tax. Against the said order, a revision has been preferred before the Additional Commissioner, Bhopal. The Additional Commissioner by order dated September 10, 2001 remanded the matter and directed the assessing authority to verify the facts submitted by the petitioner. Thereafter, the assessing authority verified the facts and found that the area did not fall within the local area and accordingly by order dated December 29, 2001, annexure P12, did not assess the petitioner to tax. In the assessment year for 2000-01 and 2001-02, no entry tax was levied. It is contended in the petition that in the meanwhile, a decision was rendered on July 6, 2001, as per annexure P13, by the Board of Revenue in the case of Larsen & Toubro [2001] 27 TLD 921, Bhopal in which while deciding whether the railway line falls within the definition of "local area" or not, the Board of Revenue held that there is no place in Madhya Pradesh which does fall in one local area or the other and, therefore, the railway line falls within the local area. The petitioner brought on record by way of amendment of the petition the order of the Board of Revenue dated June 4, 1987 as annexure P20 which stipulated that the area which does not fall within the definition of local area is excluded from the levy of entry tax and therefore, the order dated July 6, 2001 of the Board of Revenue is contrary to the decision dated June 4, 1987. On the basis of the aforesaid order, the assessing authority issued notice under section 28(1) of the M.P. Commercial Tax Act read with section 13 of the Entry Tax Act for the year 1999-2000, staring that in the original order, exemption from entry tax granted was not in accordance with law and why entry tax should not be imposed upon the petitioner. Upon receipt of notice, the petitioner submitted reply/show cause contending, inter alia, that since 1999-2000 assessment order was based on the direction of the Additional Commissioner, the same cannot be opened; that no reasons have been assigned for reopening; that as against the order of the Additional Commissioner, what had weighed with the assessing authority was not clear; that the reasons should be disclosed before passing of the order; and that reopening of the case should not be permitted. The assessing officer did not respond to the objections raised by the petitioner and went on to pass orders in all cases. The said order has been brought on record as annexure P16. Against the aforesaid order, the petitioner filed revision petitions at Bhopal and applied for stay before him but no stay was granted and both revision petitions and stay applications are pending for disposal before the Additional Commissioner. The assessing authority despite the pendency of the revision issued form 45 to the bankers of the petitioner and to National Hydro Development Corporation (previously NVDA) as a consequence of which the petitioner has been restrained from operating the bank account and getting payment from NHDC. Copies of orders have been brought on record as annexures P18A and P18B. It is averred in the writ petition that the entry tax is leviable only if the goods enter into local area for use, consumption or sale and the definition under the Entry Tax Act itself states that the local area is that area which falls within the "local authority" and "local authority" means an authority constituted under a law relating to local authority but shall not include a Janapad Panchayat, Zila Panchayat or Mandal Panchayat. It is urged that the area which falls within compartment No. 447 Chandgarh forest range where the work is to be carried out and where the goods enter for use does not fall within the local area as it is a forest area and is altogether distinct from local area and by no stretch of imagination, entry tax can be levied on the basis of local area. Various local authorities have given in writing that the area of construction and operation does not fall within the local area. It is put forth that the Board of Revenue has, on identical set of facts, held that the railway sidings do not fall within the local area. It is set forth that the authorities, without conducting any enquiry as to whether the area falls within the local area or not, have levied the tax merely on the ground of decision rendered by the Board of Revenue. A reference has been made to sections 28 and 29 of the Entry Tax Act to highlight that though the action has been said to be taken under section 28, it is actually under section 29. It is also asserted that the order of the Board of Revenue has already been assailed by Larsen and Toubro by way of reference before the Board of Revenue and the matter is sub judice and has not attained finality. It is contended that the Commissioner of Sales Tax has issued a circular under which, no entry tax is leviable within the railway area. In this background, the following reliefs have been prayed : "7(i) to issue a writ of certiorari to quash the order annexure P16 of the Assistant Commissioner, Bhopal and notices annexures P18A and 18B Dated May 22, 2004 of the Assistant Commissioner. 7(i-A) it be declared that judgment annexure P11 dated July 6, 2001 of the Board of Revenue is wholly without jurisdiction and it is liable to be quashed. 7(i-B) to direct that the petitioner is not liable to pay the entry tax and recovery made on that count is liable to be refunded. 7(i-A) it be declared that judgment annexure P11 dated July 6, 2001 of the Board of Revenue is wholly without jurisdiction and it is liable to be quashed. 7(i-B) to direct that the petitioner is not liable to pay the entry tax and recovery made on that count is liable to be refunded. 7(ii) to issue a writ of prohibition to recover the aforesaid amount of entry tax and penalty as detailed in annexures P16 and P18A and P18-B. 7(iii) to issue any other writ, order or direction as the court deems fit and proper." A return has been filed in W.P. No. 2185 of 2004 which has been adopted in all the cases, contending inter alia that the petitions filed are premature inasmuch as the revisions against the orders of assessment have been filed by the petitioner and the same are pending decision and the present petitions have been filed only against the show-cause notice for reopening the assessment on the ground that the original orders have escaped assessment under the Entry Tax Act. The respondents relying upon the decision of this court in Milan Supari Stores v. Assistant Commissioner of Commercial Tax (M.P. No. 1083 of 1996 ([1997] 107 STC 407 (MP))) have contended that the petitions filed against the notice proposing reopening of assessment are premature and not entertainable. It is put forth that the reasons proposed for reopening of the assessment have been mentioned and therefore contention of the petitioner that the notice does not contain any reason is misconceived. It is contended that in course of execution of contract, the petitioner caused entry of certain goods within the limits of local area and hence the same are exigible to payment of tax under the Adhiniyam of 1976. Earlier the area in question was not falling within any local authority, but subsequently, the Additional Commissioner by order dated December 30, 1996 recorded specific finding that the area in question came within the limits of local authority with effect from March 9, 1994 on which date the State Government constituted Narmada Nagar. Earlier the area in question was not falling within any local authority, but subsequently, the Additional Commissioner by order dated December 30, 1996 recorded specific finding that the area in question came within the limits of local authority with effect from March 9, 1994 on which date the State Government constituted Narmada Nagar. The order of the Additional Commissioner has attained finality and therefore, the petitioner was not liable to pay tax for the period prior to March 9, 1994 but certainly it is liable to pay the tax after the said date and due to inadvertence the petitioner was not assessed for entry tax for the period after March 9, 1994 in respect of goods entered by it in the local limits of village Narmada Nagar. It is stated when the above fact came to the notice of assessing officer, show-cause notices under section 13 of the Act of 1976 read with section 28(1) of the Entry Tax Act giving reasons for reopening of the assessment were issued. The objection raised by the petitioner to the first notice dated November 29, 2003 for assessment period 2001-02 was considered and keeping in view the orders passed by the Additional Commissioner as well as the Board of Revenue in the case of Larsen & Toubro [2001] 27 TLD 921, the objection was rejected. As regards notices for assessment years 1999-2000, 2000-01 and 2001-02, notices were issued on December 5, 2003 and after considering the objection submitted by the petitioner, assessment orders were passed on April 6, 2004. The petitioner has already preferred revisions before the Additional Commissioner against the said orders and the same are pending decision. So far as notices for assessment years 1995-96 to 1998-99 are concerned, it is put forth by the respondents that instead of filing reply, the petitioner has rushed to this court by filing writ petitions. The assessing authority has not passed any orders till date, therefore, the petitions are premature and are not entertainable. It is contended as the petitioner wrongly escaped assessment as regards entry tax, it became imperative to reopen the assessment proceeding as per provisions of the Entry Tax Act and there is no fault in the action of the respondents. The answering respondents have further contended that the answering respondents are bound to follow the decision of the Board of Revenue which lays down the proposition of law. The answering respondents have further contended that the answering respondents are bound to follow the decision of the Board of Revenue which lays down the proposition of law. The principle of binding precedent is not applicable in the present case. A rejoinder affidavit has been filed by the petitioner to the said return contending, inter alia, that Notification dated March 9, 2004 does not disclose as to what is the area of Narmada Nagar. It does not show the patwari circle, or khasra number or compartment number constituting Narmada Nagar. It also does not show the boundaries of the Narmada Nagar Panchayat. It is stated that the Compartment No. 447, Chandgarh Range where construction is going on does not fall within any local area and no fresh evidence has been brought on record to show that the area fell within the local area. It is contended that the said notification issued by the Panchayat and Village Development Department, in item No. 14, on the eastern side there is forest village which has been declared as Narmada Nagar which falls within the local area. It is further stated that in order annexure P4 dated June 12, 1998, the contention of the petitioner that area does not fall within the local area was accepted. In the order contained in annexure P5 again reliance was placed on the Notification dated March 9, 1994 concluding that Narmada Nagar falls within the local area. It is contended that Narmada Nagar is situated on one side of the river whereas the site where the work is being carried on falls on the other side of the river. The certificates issued by the Janapad Panchayat in the year 1996 and by the SDM clearly specify that the area where the work was going on did not fall within the local area and the order of the Additional Commissioner was distinguished. The petitioner has relied on various other certificates in support of its contention that the area in question did not fall within the Panchayat area of Narmada Nagar and the said evidence was accepted holding that the area does not fall within the local area and there is no evidence to the contrary. The petitioner has relied on various other certificates in support of its contention that the area in question did not fall within the Panchayat area of Narmada Nagar and the said evidence was accepted holding that the area does not fall within the local area and there is no evidence to the contrary. It is put forth that the Department has taken inconsistent and contradictory stand without any proof to demonstrate that the area falls within the local area and in the light of various certificates/documents brought on record by the petitioner, the stand taken by the Department runs counter to the stand taken earlier. The petitioner has referred to the decision of the Board of Revenue dated June 4, 1987 and has submitted that the said decision has the binding effect. It is contended that the Department did not challenge the order dated December 30, 1996 of the Additional Commissioner which attained finality and, therefore, the respondents are estopped from taking aid of the said decision to the detriment of the petitioner inasmuch as the subsequent decision of the Board of Revenue has no binding effect and the earlier decision of the Board of Revenue should have been followed by the assessing authority. It is further contended that the subsequent decision of the Board of Revenue lays down that every area in the State falls within the local area and if the same is accepted, there will not be any scope for the subordinate authority to take a contrary view to that taken by the Board of Revenue which being the final authority in the hierarchy of revenue courts, hence it has become necessary for the petitioner to file the present petitions. It is stated that revisions filed by the petitioner are mere formality and the petitioner will not be able to get any relief in view of the decision of the Board of Revenue. The petitioner has contended that question of escaping assessment does not arise, it being neither a case of under-assessment or escaped assessment and the action to review or revise the assessment under section 28 is unjustified. I have heard Mr. Kavin Gulati and Mr. Shekhar Sharma, learned counsel for the petitioner and Mr. S. K. Yadav, learned Government Advocate for the State. Before I proceed to enumerate the rival submissions raised at the bar, it is seemly to state that Mr. I have heard Mr. Kavin Gulati and Mr. Shekhar Sharma, learned counsel for the petitioner and Mr. S. K. Yadav, learned Government Advocate for the State. Before I proceed to enumerate the rival submissions raised at the bar, it is seemly to state that Mr. Yadav, learned Government Advocate has raised a preliminary objection on behalf of the respondents that there is alternative and efficacious remedy for the petitioner and instead of availing that, the petitioner has straightway approached this court under article 226 of the Constitution of India. Controverting the aforesaid submission, it is put forth by Mr. Gulati and Mr. Sharma, in the decision of Larsen and Toubro [2001] 27 TLD 921, it has been held that the entire area of Madhya Pradesh is a local area and the assessing officer has relied upon the said decision in his assessment order and once the superior authority has expressed the view that the entire State is a local area, the subordinate authorities being bound by the same, the alternative remedy is an illusory one and can never be treated to be efficacious. In addition, it is contended that the petition has been filed for referring the matter to this court for reference under section 70 of the M.P. Commercial Tax Act, 1994 and, therefore, it would be an exercise in futility to relegate to the petitioner to the alternative forum. Mr. Gulati, learned counsel, to bolster his submissions, has placed reliance on the decision in the case of Filterco v. Commissioner of Sales Tax [1986] 61 STC 318 (SC); [1986] 2 SCC 103 and Owners and Parties interested in M.V. "Vali Pero" v. Fernandeo Lopez [1989] 4 SCC 671. It is noticeable in the case at hand that the Board of Revenue has recorded a finding with regard to the local area and the writ petitions were admitted for adjudication. In addition, many a jurisdictional issue has been raised relating to reopening of assessment. Considering the totality of facts and circumstances, I am of the considered opinion, the preliminary objection by the learned counsel for the State as regards the availability of alternative remedy is not acceptable and accordingly, the said contention is repelled. Presently, I shall proceed to enumerate the submissions raised by the learned counsel for the parties. Contentions of Mr. Considering the totality of facts and circumstances, I am of the considered opinion, the preliminary objection by the learned counsel for the State as regards the availability of alternative remedy is not acceptable and accordingly, the said contention is repelled. Presently, I shall proceed to enumerate the submissions raised by the learned counsel for the parties. Contentions of Mr. Gulati, learned counsel for the petitioner are as follows : (a) Reopening of assessment under section 13 of the Entry Tax Act read with section 28 of the M.P. Commercial Tax Act, 1994 is totally without jurisdiction, inasmuch as in two assessment orders 1992-93 and 1999-2000, it is already held that the area in question is not a local area. The said orders have been passed by the revisional authority which have attained finality, not being challenged in any proceeding and hence the assessing officer being subordinate to revisional authority cannot bypass the same. (b) Reopening of the assessment has come into existence without any foundation, inasmuch as no new facts have come to light after orders have been passed by the revisional authority, which would enable the assessing officer to take a contrary view. (c) Reopening of assessment could be initiated only if there has been an under-assessment or an escaped assessment. In the case at hand, the revisional authority has already held that area of operation does not fall within the local area and under this circumstance, the assessing officer cannot issue notices for reassessment under section 28 treating the area as a local area. In the obtaining factual matrix, the same cannot be considered as an under-assessment or an escaped assessment. (d) No cogent reasons have been ascribed while initiating the assessment. Section 28 of the Act of 1994 envisages that the assessing officer, prior to issue of notice, must come to a conclusion that there has been an escaped assessment or under-assessment. In the case at hand, as no reasons have been recorded, the notice to show-cause for reassessment is vitiated in law. The order of assessment passed by the assessing officer has to pave the path of extinction, inasmuch as the doctrine of audi alteram partem has been given an indecent burial, inasmuch as in a hot haste, reassessment has been ordered, though the provisions engraft grant of reasonable opportunity. The order of assessment passed by the assessing officer has to pave the path of extinction, inasmuch as the doctrine of audi alteram partem has been given an indecent burial, inasmuch as in a hot haste, reassessment has been ordered, though the provisions engraft grant of reasonable opportunity. (e) The order to show cause and the order of assessment are totally based upon the decision rendered in the case of Larsen & Toubro [2001] 27 TLD 921 and the real power that has been resorted is section 29 of the Act and such power can be invoked on the conditions precedent under the said section and, therefore, the initiation of reassessment proceedings is sans jurisdiction. (f) It is well-settled in law that no reassessment can be made on a mere change of opinion. On a scrutiny of the show-cause and the order of assessment it would be quite clear that the, reopening of assessment has been directed by change of opinion without any basis, not even recording the factum that the petitioner had not disclosed certain facts earlier which had come to the knowledge of the assessing officer enabling him to reopen the proceeding. (g) The finding recorded by the Board of Revenue that it is a local area and on the said basis, the reopening of assessment has been done is legally not correct inasmuch as the view taken in the case of Larsen & Toubro [2001] 27 TLD 921 is per incuriam and further, it has not yet attained finality. (h) The concept of "local area" is to be determined, not by general definition of the term but has to be determined by looking at the dictionary clause in the Act itself, i.e., section 2(e) of the Entry Tax Act. (i) The revisional authority for both the assessment years 1992-93 and 1999-2000 has relied upon number of documents produced by the petitioner and arrived at a finding that the area in question is not a local area and that there is nothing on record to the contrary. (i) The revisional authority for both the assessment years 1992-93 and 1999-2000 has relied upon number of documents produced by the petitioner and arrived at a finding that the area in question is not a local area and that there is nothing on record to the contrary. (j) Reliance on Government order dated March 9, 1994 issued under the M.P. Panchayat Raj Adhiniyam of 1993 declaring Narmada Village as forest village is misconceived inasmuch as the work site of the petitioner is on one side of Narmada river and the Narmada Nagar is on the other side as per finding recorded by the revisional authority and the same finding having attained finality, is not covered by the notification. Mr. Yadav, learned Government advocate combating the aforesaid submissions contended that the concept of res judicata or estoppel does not apply to proceedings under taxing statute and when a circular has been issued on March 9, 1994 under section 3 of the M.P. Panchayat Raj Adhiniyam, 1993 declaring Narmada Nagar as a forest village, the concept of local area is attracted. The contention that the assessing officer has not applied his mind while reopening the assessment is totally misconceived. The contention that the proceeding is not based on escaped assessment or under-assessment is totally misconceived. The finding recorded by the assessing officer is not vitiated as reasonable opportunity was granted. Though the rivalised submissions are manifold, the basic question that arises for consideration is whether the petitioner is carrying on its business within the local area as defined under the Act. It is worth noting that on earlier occasions, a finding was recorded that the petitioner's working area is not coming within the "local area". The judgment rendered by the Board of Revenue in Larsen & Toubro [2001] 27 TLD 921 holds that the entire State of M.P. would be local area. How far the same is correct or not, I am inclined to think need not be adverted to in the present case. The judgment rendered by the Board of Revenue in Larsen & Toubro [2001] 27 TLD 921 holds that the entire State of M.P. would be local area. How far the same is correct or not, I am inclined to think need not be adverted to in the present case. In the case at hand, on earlier occasions relying on number of documents namely, (i) Certificate of Range Officer Chandgarh dated December 25, 1995, (ii) Letter of Sarpanch Narmada Nagar dated December 21, 2000 (annexure 19), (iii) Letter from NHDC, (iv) Letter from the Forest Range Officer, Chandgarh dated September 5, 2001, (v) Letter from Chief Engineer, Power, NHDC dated September 7, 2001 (annexure 19), (vi) Letter from Chief Engineer Dam NHDC dated September 3, 2001 (annexure 19), (vii) Letter of SDO Harsud dated December 23, 1996 (annexure 19C), (viii) Letter from Superintending Engineer Narmada Vikas Mandal, (ix) Letter from all local bodies surrounding the work site stating that the area in question does not fall in their respective Zila Panchayat, Nagar Palika, etc., (x) Letter from the Chief Nagar Palika Officer, Moondi [annexure 19(e)] and (xi) Letter from the Sarpanch, Gram Panchayat, Punasa dated December 21, 2000, [annexure 19(f)], it has been held that the petitioner was not working in a local area. The said matter is a fundamental concept unless there is a change in location or there is a change of concept of local area by definition. In the case of Radhasoami Satsang v. Commissioner of Income-tax [1992] 193 ITR 321, the apex court expressed the view that in the absence of any material change justifying the department to take a different view from that had been taken in earlier proceedings, the question of exemption of the assessee appellant should not been reopened. In the said case, it was further held as under : "We are aware of the fact that, strictly speaking, res judicata does not apply to income-tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. On these reasonings, in the absence of any material change justifying the Revenue to take a different view of the matter - and, if there was no change, it was in support of the assessee - we do not think the question should have been reopened and contrary to what had been decided by the Commissioner of Income-tax in the earlier proceedings, a different and contradictory stand should have been taken. We are, therefore, of the view that these appeals should be allowed and the question should be answered in the affirmative, namely, that the Tribunal was justified in holding that the income derived by the Radhasoami Satsang was entitled to exemption under sections 11 and 12 of the Income-tax Act of 1961. Counsel for the Revenue had told us that the facts of this case being very special, nothing should be said in a manner which would have general application. We are inclined to accept this submission and would like to state in clear terms that the decision is confined to the facts of the case and may not be treated as an authority on aspects which have been decided for general application." In the case of Commissioner of Trade Tax, U.P. v. Mansarovar Bottling Co. Ltd. Civil Appeal No. 842 of 2002 [2006] 145 STC 659, the apex court took note of the fact that Sales Tax Tribunal by order dated February 25, 1995 had set aside the first petition on the ground that reasonable opportunity had not been granted to the respondents. The liberty was granted to the Divisional Level Committee to reconsider the application of the petitioner for grant of eligibility certificate. The D.L.C. rejected the application for the second time on September 8, 1995. Three reasons were given in support of the rejection, all reasons based on Explanation to section 4A of the U.P. Trade Tax Act, 1948. All these grounds were rejected by the Tribunal in appeal by its order dated February 24, 1996. The Tribunal had negatived the grounds specifically. The order of the Tribunal was not challenged and was allowed to attain finality. The Tribunal allowed the appeal and the matter travelled to High Court. The High Court dismissed the appeal. Affirming the order of the High Court, their Lordships expressed the view as under : "The appellant's appeal to the High Court was correctly dismissed. The order of the Tribunal was not challenged and was allowed to attain finality. The Tribunal allowed the appeal and the matter travelled to High Court. The High Court dismissed the appeal. Affirming the order of the High Court, their Lordships expressed the view as under : "The appellant's appeal to the High Court was correctly dismissed. The grounds agitated before the High Court as indeed before this court are those which had been taken in the second order of rejection dated September 8, 1995 which had been held unsustainable by the Tribunal in its order dated February 24, 1996 and from which order the appellant has not preferred any appeal. It is not open to the appellant to reopen the issue having accepted the same in respect of very same parties." In this context, I may refer with profit to the decision in the case of M.A. Namazie Endowment v. Commissioner of Income-tax [1988] 174 ITR 58 wherein the High Court of Madras expressed the view that the Income-tax Officer is not bound by the rule of res judicata and that he can reopen a question previously decided only if fresh facts come to light on investigation. That would entitle him to come to a conclusion different from the one previously reached or if the earlier decision had been rendered without taking into consideration the material evidence. In the said case, their Lordships while dealing with the factum whether the trust is not charitable for the purpose of income-tax proceeding, held that question could be opened only if the fresh facts come to light on investigation. I have referred to the said aspects because there had been finding recorded by the Tribunal in the case of present assessee that he was not operating in the local area. If the notice to show cause and the assessment order are scrutinised, it is perceivable that the said aspect has not been specifically dealt with. The assessing authority has proceeded on a different criteria altogether. There was an earlier order by the highest authority in relation to the area where the petitioner was operating. If the area has changed, the matter would be different. If the law has changed the definition, the matter would be different. The interpretation given by the Board of Revenue, in my considered opinion, has not attained finality. There was an earlier order by the highest authority in relation to the area where the petitioner was operating. If the area has changed, the matter would be different. If the law has changed the definition, the matter would be different. The interpretation given by the Board of Revenue, in my considered opinion, has not attained finality. In view of my preceding analysis, the notice to show cause and the order of assessment are quashed. If the assessing officer finds that there is a change of fundamental fact, he would issue notice for reopening of assessment. This order is restricted to the facts of the present cases as there had already been a determination with regard to the local area. The writ petitions are allowed to the extent indicated above. There shall be no order as to costs.