JUDGMENT The petitioner is a company registered under the Companies Act. The main object of incorporation of the petitioner - company as provided in the memorandum of association is to undertake the electricity, sub-transmission, distribution and retail supply amongst other places in Kanpur urban areas and other districts in the State of U.P. The petitioner is supplying the electricity to its consumers under the agreements executed with such consumers. To measure the consumption of electricity, the petitioner is using the metres and realizing the rent from the consumers. For the assessment years 1998-99 to 2001-02, the Department accepted the claim of the petitioner that trade tax is not leviable on the metre rents charged by the petitioner from the customers, under section 3F of the said Act, in view of the fact that there is no transfer of right to use the metres. The said meters could only be used for measuring the consumption of electricity. Assessment orders were framed in the light of the circular dated February 6, 1996 issued in this regard by the Commissioner. Thereafter notices under section 21 of the U.P. Trade Tax Act for the aforesaid assessment years to reassess the turnover were issued on the ground that the metres rent charged by the petitioner has escaped assessment and the petitioner is liable to pay trade tax on the said amount in view of section 3F of the Act. Permission as required under section 21(2) was sought for and was granted by the concerned Commissioner by the order dated March 15, 2005. Copy of these orders have been collectively filed as annexure 12 to the writ petition. The assessing authority thereafter proceeded to reassess the turnover of the petitioner and consequently passed reassessment orders dated March 29, 2005 under section 21 of the Act. Challenging the aforesaid orders, the present writ petition has been filed, mainly on the ground that there was no material in possession of the Department to form a belief that the turnover of the petitioner has escaped assessment. In other words, the case of the petitioner is that the original assessment orders were framed in accordance with the circular issued by the Commissioner at the relevant point of time. In other words, the case of the petitioner is that the original assessment orders were framed in accordance with the circular issued by the Commissioner at the relevant point of time. In the counter-affidavit the stand taken by the respondents is that since the petitioner has admittedly charged rent from the customers, in view of section 3F, the petitioner is liable to pay the tax thereon. The learned standing counsel in this connection referred paragraph 14 of the counter-affidavit of Shri R. N. Yadav. Heard learned counsel for the parties and perused the entire record of the case. The learned counsel for the petitioner in support of the writ petition submits that the assessments are sought to be reopened on the basis of subsequent circular dated January 13, 2005 issued by the Commissioner. Submission is that it is not permissible under the law to reopen a concluded assessment, in view of the subsequent circular. Secondly, in the said subsequent circular itself it has been provided by the Commissioner that the circular shall have prospective operation. In other words, it will have no application to the concluded assessment. The learned standing counsel, on the other hand, supports the action of the Department. Considered the respective submissions of the learned counsel for the parties and perused the entire record of the case. Before proceeding further, we may notice one fact that against the ex parte reassessment orders, applications under section 30 of the Act were filed and those applications have been dismissed. The petitioner has not challenged the orders rejecting the applications moved under section 30 of the Act. The controversy in the present writ petition, therefore, centres round as to whether a concluded assessment can be reopened, which was framed in the light of the prevailing circular in view of the subsequent circular issued by the Commissioner. We find that the said controversy is no longer res integra and stands concluded in favour of the petitioner by authoritative pronouncement of the apex court in the case of Binani Industries Limited v. Assistant Commissioner of Commercial Taxes, VI Circle, Bangalore [2007] 6 VST 783; [2007] 34 NTN 44. The relevant portion from the said judgement is reproduced : "The issues can be looked at from a different angle. The relevant portion from the said judgement is reproduced : "The issues can be looked at from a different angle. Undisputedly, the 1996 circular was binding on the revenue authorities as is spelt out in the case of April 12, 1996 and October 23, 1999 circulars. The assessments were completed on the basis of April 12, 1996 circular. Merely because the Commissioner changes his view/opinion and according to him it was review of the earlier decision that cannot have any effect on any assessment which has been completed on the basis of the 1996 circular." Therefore, if the Commissioner changes his view as mentioned in the subsequent circular that such an item is taxable, that cannot have any effect on any assessment which has been completed on the basis of circular dated February 6, 1996. In other words, reopening of an assessment is not permissible if the Commissioner reviews its earlier circular. The argument of the learned counsel is, thus, well-founded. The learned counsel for the petitioner submits that the subsequent circular dated January 13, 2005 will have no application to the concluded assessment as it is prospective in nature and placed reliance on paragraph 6 of the circular dated January 13, 2005. The submission is that the said circular is prospective in nature and it will not apply to the concluded assessment. It is difficult to agree with him. On a plain reading of the said circular, it is but obvious that the earlier circulars were withdrawn with immediate effect with the directions to the authority concerned to frame assessment and issue recovery, etc., in the light of the present circular. It does not mean that the circular dated January 13, 2005 is prospective in nature. It was also submitted by the petitioner that the Additional Commissioner, Grade 1, Trade Tax, while granting permission by the order dated March 15, 2005 has not considered the reply of the petitioner and has mechanically granted the permission to reopen the assessment. The necessary averments in this regard have been made in paragraph 22 of the writ petition. The said paragraph has been dealt with in the counter-affidavit of Shri R. N. Yadav. There is no denial in the counter-affidavit with regard to the filing of the reply by the petitioner before the Additional Commissioner, Grade 1, Trade Tax. The necessary averments in this regard have been made in paragraph 22 of the writ petition. The said paragraph has been dealt with in the counter-affidavit of Shri R. N. Yadav. There is no denial in the counter-affidavit with regard to the filing of the reply by the petitioner before the Additional Commissioner, Grade 1, Trade Tax. It follows that the Additional Commissioner, Grade 1, Trade Tax has granted the permission without taking into consideration the reply dated March 10, 2005 filed by the petitioner. In view of the decision of the Division Bench of this court in S.K. Traders, Modi Nagar, Ghaziabad v. Additional Commissioner, Grade 1, Trade Tax Zone Ghaziabad [2009] 26 VST 601; [2008] UPTC 392, the order granting the permission is bad on this ground also. The Additional Commissioner, Grade 1, Trade Tax, has not taken into consideration the reply filed by the petitioner. In view of the above, the writ petition succeeds and is allowed. All the impugned orders dated March 15, 2005 and the reassessment order dated March 29, 2005 for the relevant assessment years, are hereby quashed. No order as to costs.