ORDER Dr. A.R. Basu, EC. (Appeals). - This is an appeal filed against the order dated 19.12.2003 of first Appellate Authority i.e. Additional Excise & Taxation Commissioner (SZ) at Shimla. The first Appellate Authority has upheld the assessment order dated 24.9.2002 in which the Assessing Authority has created an additional demand of Rs. 1, 46,809/- for the period 1998-99, 1999-2000 and 2000-01. 2. The facts of the case are that there is one restaurant in the name and style of M/S. Nalini Restaurant, The Mall, Shimla. This restaurant is a registered dealer and it runs a Sweets Corner in its restaurant for selling sweets, Coffee etc. at the sale counter. The sweets are prepared in their workshop at another place at Chhotta Shimla, but are sold in a Sweet Corner of the restaurant. The appellant has challenged the act of taxing the turnover amounting to Rs. 3, 76,870/- in respect of the sweets and coffee sold in the restaurant. The learned Counsel for appellant, Shri V.K. Gupta, has raised following points:— 1. That the Assessing Authority had re-assessed the turnover of the registered dealer without having any new and definite information and the act of re-Aassessment was nothing but the change of opinion, which is not permissible as per Section 15 of H.P. General Sales Tax Act. 2. That the definite information with the Assessing Authority was the report of the Audit and which cannot be made the basis to re-assess the turnover of the registered dealer. 3. Lastly, the registered dealer has further contented that the act of selling of sweets and coffee comes within the definition of "Halwai" and no tax is payable at such activity and is exempted as per Entry-79 of Scheduled-B of H.P. General Sales Tax Act, 1968. 3. The learned Counsel for the Appellant cited Krishna Enterprises v. Commissioner of Sales Tax, New Delhi, (Vol. 140 STC Page 148) and M/s. Continental Construction Co., Kafnoo, District Kinnaur v. Assessing Authority, Kinnaur & another (Vol. 16 STC Page 507) in support of his contentions. 4. The learned Assistant Excise & Taxation Commissioner (Legal) on the other hand has submitted that the real point in controversy is whether the act of selling of sweets and coffee by the registered dealer is covered under the term "HALWAI" of the H.P. General Sales Tax Rules, 1970 or not. 16 STC Page 507) in support of his contentions. 4. The learned Assistant Excise & Taxation Commissioner (Legal) on the other hand has submitted that the real point in controversy is whether the act of selling of sweets and coffee by the registered dealer is covered under the term "HALWAI" of the H.P. General Sales Tax Rules, 1970 or not. He has stated that as per the definition embodied in the rules the term "Halwai" has been defined in 17-B (1) of the Rules as under:— "17-B(1) "Halwai" means the owner of a small business where only customary sweets, milk, curd, namkeen, poories etc. are sold in traditional style and fashions." 5. The learned Assistant Excise & Taxation Commissioner (Legal) has further submitted that the registered dealer does not come under the category of "small business", which means a commercial establishment; where:- (a) The owner himself is an active worker and does not have more than five helpers to run the establishment; (b) No traditional or separate service charges are claimed or charged from the customer in addition to the cost of article(s) sold; (c) No uniformed bearers or waiters are kept and there is no elaborate or fancy decoration or furniture, except for benches, cots or ordinary chairs and table for the customers; and (d) The cooking hearth, chullah, angithi or stove is kept within the premises and open to public view. 6. The learned Assistant Excise & Taxation Commissioner (Legal) has further submitted that the Assessing Authority had definite information which was of confidential nature on the basis of which the notice was issued to the registered dealer. The Assessing Authority can not be compelled to disclose the source and lastly he has contended that re-assessment done by the Assessing Authority had not been originated on the basis of the Audit objection as alleged and, therefore, additional demand created for the sale of sweets which has been shown as tax free in return of the registered dealer cannot be exempted and therefore the tax, interest and penalty as pointed in the assessment order are legal and proper. 7. I have heard the learned Counsel for the appellant and the learned Assistant Excise & Taxation Commissioner (Legal) and have gone through the provisions of H.P. General Sales Tax Act, 1968 and H.P. General Sales Tax Rules, 1970. 7. I have heard the learned Counsel for the appellant and the learned Assistant Excise & Taxation Commissioner (Legal) and have gone through the provisions of H.P. General Sales Tax Act, 1968 and H.P. General Sales Tax Rules, 1970. The Rule 17-B clearly prescribes the term "Halwai" and "Dhabawalas" for the purpose of item No. 79 of Schedule-B, appended to the H.P. General Sales Tax Act, 1968. The term "Halwais and Dhabawalas" for the purposes of item No. 79 of Schedule B appended to the H.P. General Sales Tax Act, 1968 (Act No. 24 of 1968) shall be as under :— (i) "Halwai" means the owner of a small business where only customary sweets, mild, curd, namkeen, poories etc. are prepared and sold in traditional style and fashion. (ii) "Dhaba" means a small business of running an eating place where only traditional Indian Meals are prepared and sold and includes a "tandoorwala", "Lohwala" and "Chatwala". (iii) "Small business" means a commercial establishment; where: (a) The owner himself is an active worker and does not have more than five helpers to run the establishment; (b) No traditional or separate service charges are claimed or charged from the customers in addition to the cost of article(s) sold; (c) No uniformed bearers or waiters are kept and there is no elaborate or fancy decoration or furniture, except for benches, cots or ordinary chairs and tables for the customers; and (d) The cooking hearth, chullah, angithi or stove is kept within the premises and open to public view." 8. No doubt the activity of the dealer on the Mall of Shimla Town does not appear to be that of "Halwai" or running a "Small Business" as defined in H.P. General Sales Tax Rules, 1970, but at the same time, another important factum of the case is that the circumstances under which the Assessing Authority can invoke the provisions of Section 15 of H.P. General Sales Tax Act, 1968. The Section 15 of H.P. General Sales Tax Act, 1968 provides that:- (1) if in consequence of definite information which has come into his possession, the Assessing Authority discovers that the turnover of the business of the dealer has been under assessed or escaped assessment in any year, the Assessing Authority may, at any time within three years from the date of assessment under Section 14, proceed to re-assess the tax payable on the turnover which has been under-assessed or has escaped assessment: Provided that the Assessing Authority may also take action to impose the penalty and interest under this Act: Provided further that no order of re-assessment or imposition of penalty and interest shall be made unless the dealer is afforded a reasonable opportunity of being heard in the prescribed manner. (2) An Assessing Authority or any such authority as may be prescribed may, at any time, within one year from the date of any order passed by him and subject to such conditions as may be prescribed, rectify any clerical or arithmetical mistake apparent from the record. 9. After going through the Section 15 ibid above, it is obvious that there must be some definite information, which should come to the knowledge of the Assessing Authority and in consequence of such definite information, he should be able to ascertain that the turnover of the business of the dealer has either been under assessed or escaped assessment in any year, otherwise he is legally barred to re-assess the turnover of the dealer. 10. In Krishna Enterprises v. Commissioner of Sales Tax, New Delhi, it has been held that - "REASSESSMENT - ASSESSMENT MADE HOLDING NO TAX LIABILITY - SUBSEQUENT REOPENING TO BRING TO TAX CERTAIN ITEM ON BASIS OF NOTIFICATION ALREADY IN EXISTENCE WHEN ASSESSMENT MADE - MERE CHANGE OF OPINION ON SAME SET OF FACTS - REASSESSMENT INVALID - "REASON TO BELIEVE", MEANING OF - DELHI SALES TAX ACT (43 OF 1975) SECTION 24. 11. In the writ petition questioning the validity of reassessment orders j under the Delhi Sales Tax Act, 1975, made by the assessing officer for j the assessment years 2000-01 and 2001-02 on the basis of the notification dated November 28, 2000. 12. 11. In the writ petition questioning the validity of reassessment orders j under the Delhi Sales Tax Act, 1975, made by the assessing officer for j the assessment years 2000-01 and 2001-02 on the basis of the notification dated November 28, 2000. 12. Held, allowing the petition, that under Section 24 of the Delhi Sales Tax Act, 1975, there must be "reason to believe" that the turnover of the dealer has escaped assessment to tax, or has been under-assessed or assessed at a lower rate or any deduction has been made there from. The notification on basis of which assessment was reopened, was there since the year 2000, return was submitted by the assessee giving all the details and it was for the assessing officer to assess the assessee considering the law applicable. There was no fresh material with the assessing officer nor there anything to show that the assessee concealed some material from the assessing officer so as to enable him to reopen the case. Reassessment was made on the same facts on a mere change of opinion and therefore the orders were liable to be quashed. 13. Similarly, in M/S. Continental Construction Co., Kafnoo, District Kinnaur v. Assessing Authority, Kinnaur and another, it has been held that "Himachal Pradesh General Sales Tax Act, 1968, Section 15 - Reassessment -Reassessment on the basis of audit objection - Not maintainable as the report of audit party is not "information" as contemplated by Section 15 of the Act - Reassessment can be made on a definite information coming into the possession of Assessing Authority and he discovers that the turnover of the assessee has escaped assessment - Assessing authority being a quasi judicial authority cannot rely on an other authority such as Accountant General to form an opinion that the turnover has escaped assessment. Report of audit objection does not constitute "information" for the purposes of reassessment," 14. In view of the citations mentioned above, it is clear that the change I of the opinion on the same set of facts is not legally permissible. In addition I to this, it has been held in State of Andhra Pradesh v. Ampro Foods Pvt. Ltd, (1995) 96 STC Page 617 (AP), that "there is no fresh material "de-thors", the assessment record in that behalf, therefore we are unable to I accept the contention of the learned Government pleader. In addition I to this, it has been held in State of Andhra Pradesh v. Ampro Foods Pvt. Ltd, (1995) 96 STC Page 617 (AP), that "there is no fresh material "de-thors", the assessment record in that behalf, therefore we are unable to I accept the contention of the learned Government pleader. In view of this finding of facts, we have no option but to hold that the reopening of assessment by the Assessing Authority was wholly illegal and unjustified." 15. In the present case, the Assessing Authority in his re-assessment order dated 24.9.2002 has no where stated that the fact of dealer having been shown "Halwai" and running a "small business establishment", had come to his knowledge subsequent to earlier order. 16. From the perusal of the re-assessment order, it appears that the Assessing Authority had exempted the sale of sweets and coffee for the years 1998-99 to 2000-01 as the dealer was covered under the terms "Halwai" and running a "Small Establishment" as this information was already on the record of the Assessing Authority. As such the Assessing Authority cannot reopen the earlier assessment order merely after changing his mind in the absence of any definite information. The learned Assistant Excise & Taxation Commissioner (Legal) appearing on behalf of the Assessing Authority could not produce any such definite information by which the Assessing Authority had reopened the earlier assessment order. 17. In view of the provision of Section 15 of H.P. General Sales Tax Act, 1968 (Act 24 of 1968) and the case law discussed above, I am of the opinion that there was no occasion for reopening of the earlier assessment order and as such re-assessment could not be legally permissible on the same set of facts and record. As such the appeal is accepted and order of Additional Excise & Taxation Commissioner (SZ), Shimla dated 19.12.2003 is set aside. 18. Announced in the open Court today the 11th August, 2005. 19. Order is communicated to the parties and the file after doing the needful be consigned to the record room. Appeal allowed.