JUDGMENT Prakash Krishna, J. - By means of the present writ petitions, the validity and legality of the circular dated February 17, 2004 issued by the Commissioner, Trade Tax, U.P. wherein it has been provided that sale and purchase of eatable goods by the club to its members is taxable as the same is included within the extended definition of "sale and purchase" after 46th Amendment of the Constitution in article 366(29A) of the Constitution of India, has been challenged. All the three petitions were heard together and it was submitted that identical controversy is involved therein. The argument was advanced with reference to the writ petition No. 324 of 2005. The facts of the case as unfolded in the writ petition may be noticed in brief. The petitioner claims that it was incorporated as a limited company under the Indian Companies Act, 1956. A photostat copy of the certificate of incorporation of the petitioner - company has been filed as annexure 2 to the writ petition. The petitioner - company is a non-profit making company and is not doing any business of buying and selling, supplying or distributing goods. It runs the membership club known as Ganges Club, Kanpur. The petitioner - company only renders services to its members. It does not undertake to do any service for or to any person who is not a member of the petitioner - company. The case of the petitioner is that its activity is excluded from the purview of the U.P. Trade Tax Act, 1948. It is not carrying on any business within the meaning of section 2(aa) of the U.P. Trade Tax Act. The assessment for the assessment year 1994-95 was completed by the order dated March 31, 1998 and the petitioner was subjected to tax on the alleged turnover of sale of food and other articles served by it to its members. The said order was carried up in appeal which was allowed on March 31, 1998 and the said order has attained finality. The petitioner was assessed accordingly for the subsequent assessment year 1996-97 on March 31, 1999. The Additional Commissioner, Trade Tax, Kanpur (respondent No. 3, herein) has granted the permission to the petitioner's assessing authority to reassess the petitioner - company for the assessment year 1996-97 vide order dated February 21, 2003. The petitioner was assessed accordingly for the subsequent assessment year 1996-97 on March 31, 1999. The Additional Commissioner, Trade Tax, Kanpur (respondent No. 3, herein) has granted the permission to the petitioner's assessing authority to reassess the petitioner - company for the assessment year 1996-97 vide order dated February 21, 2003. By means of the present petition, the petitioner has sought the quashing of the reassessment proceedings under section 21 of the Act for the assessment years 1997-98, 1998-99 and 1999-2000 initiated through notices dated February 8, 2005, December 10, 2004 and December 10, 2004. The quashing of the assessment proceedings for the assessment years 2000-01 and 2001-02 has also been sought for along with the consequential reliefs. The grievance of the petitioner is that in view of the impugned circular dated February 17, 2004, it is not expected from the statutory authorities that they will take a different view of the matter and as such the present writ petition is the appropriate remedy for quashing the proceedings and the notices as also the circular dated February 17, 2004. A detailed counter-affidavit has been filed wherein the proceedings initiated against the petitioner assessment years-wise and the various dates fixed in those proceedings have been highlighted. A preliminary objection as regards to the maintainability of the writ petition has been raised and it is pleaded that the petition is liable to be dismissed on the ground of laches and concealment and/or non-disclosure of material facts in the writ petition. In addition thereto, plea of alternative remedy by way of appeal has also been set out. The plea that the petitioner is not a "dealer" or is not carrying on any business of "sale or purchase" has been disputed. It has been stated that the proceedings were initiated much prior to the impugned circular dated February 17, 2004 which fact is evident from the order dated September 24, 2003 from the order of the Additional Commissioner granting authorization under the proviso to section 21(2) of the Act. Further case of the Department is that the writ petition has been filed on false and baseless claims. The audited accounts of income and expenditure and the balance sheet of the petitioner - company do show the other side of the picture. Further case of the Department is that the writ petition has been filed on false and baseless claims. The audited accounts of income and expenditure and the balance sheet of the petitioner - company do show the other side of the picture. In other words, the balance sheet and the audited income and expenditure account of the petitioner clearly establishes that the petitioner is engaged in the business of sale of cooked food, etc., at a very large scale and the allegations to the contrary as set out in the writ petition, are incorrect. The action of the Department has been sought to be justified on various grounds as set out in the counter-affidavit in detail. In the rejoinder affidavit, it is contended that the questions raised in the writ petition are purely legal and does not involve any disputed question of fact. The question of liability to tax on an incorporated club on the supply of eatables to its members and their guests, etc., is a substantial question of law of general public interest and needs adjudication by this court as it would affect all incorporated clubs in the State of Uttar Pradesh. In reply to the plea raised in the counter-affidavit that the petitioner has submitted to the jurisdiction of the assessing authority, it has been stated that the petitioner had participated in the proceedings to impress on the assessing authority that it lacks the jurisdiction. The petition is directed against the reassessment proceedings on the ground of lack of jurisdiction and the assessment proceedings for the assessment year 2000-01 and 2001-02 are consequential, the petition is maintainable as it raises purely legal question. In para 15 it has been stated for the first time that it is a members club and thus, the members of the petitioner contribute to serve themselves. The petitioner's members pay their contribution to the club, i.e., themselves in the incorporated form for the purposes of serving the members, i.e., themselves. The relationship between the members and the club is peculiar and unique. The club charges amount from its members to properly serve them. The excess collections/profits are being utilized and are meant for common benefit of the members. Heard Shri Bharat Ji Agrawal, learned senior counsel along with Sri S. D. Singh, advocate for the petitioner and Sri S. P. Kesharwani, learned standing counsel for the contesting respondents. The club charges amount from its members to properly serve them. The excess collections/profits are being utilized and are meant for common benefit of the members. Heard Shri Bharat Ji Agrawal, learned senior counsel along with Sri S. D. Singh, advocate for the petitioner and Sri S. P. Kesharwani, learned standing counsel for the contesting respondents. The learned senior counsel for the petitioner submits that in view of article 366(29A) of the Constitution added by the Constitution (46th Amendment) Act also in view of the extended definition of "sale" as contained in section 2(h) of the U.P. Trade Tax Act, the impugned circular issued by the Commissioner, Trade Tax providing for levy of trade tax on the sale and supply of goods by a club is liable to be taxed, will not apply to a club or organization which is incorporated. Reliance to clause (e) of the article 366(29A) of the Constitution of India was placed in particular. Elaborating the argument, he submits that the said clause contemplates the tax on the supply of goods by any unincorporated association. The similar definition finds place in section 2(h)(iv) of the Act. The submission is that the petitioner is indisputably incorporated under the Companies Act, the supply of food and drink by it to its members does not amount to "sale". He further submits that to constitute a "sale" two legal entities are required, i.e., "seller" and "buyer". In the case of club, club being incorporated, supply is made by the club to its members in the sense that the club is agent of the members. To put it differently, the supply of food articles by the club to its members, is a supply by self and it does not constitute a "sale". The circular issued by the Commissioner is binding on the authorities below to him and as such no useful purpose will be served by asking the petitioner to approach the statutory authorities by way of appeal or revision. No distinction in between incorporated and unincorporated body having been made in the circular, the circular is liable to be struck down, submits the learned senior counsel for the petitioner. In contra, Sri S. P. Kesharwani, learned standing counsel for the Department, on the other hand, submits that the petition is liable to be dismissed on the preliminary ground that it is highly belated, on the principles of laches. In contra, Sri S. P. Kesharwani, learned standing counsel for the Department, on the other hand, submits that the petition is liable to be dismissed on the preliminary ground that it is highly belated, on the principles of laches. The petitioner participated in the reassessment proceedings and on coming to know that the order is likely to go against, it rushed to this court by filing the present petition. The petitioner has concealed the material facts as pointed out in the counter-affidavit. Even otherwise also, the petition is not maintainable as it is directed against a show-cause notice. On merits, he submits that the petitioner is an incorporated body under the Companies Act, 1956. Members of a company are different persons than a company. They are different legal entity. Under the Companies Act, the word "member" has been defined. Elaborating the argument, he submits that in view of section 34 which deals with the effect of registration of a company and section 41 which defines "members of company", the contention of the petitioner that club and members are one and the same thing is liable to be rejected. Any person can become a member of the club by giving the membership fee and fulfilling the required conditions. The supply of food articles and drinks by the club to its members who may be regular or casual is nothing but a sale within the extended meaning of section 2(h) of the Act. Factually, the petitioner is carrying on the business of selling food articles may be to its members and customers and making huge profits as is evident from its audited accounts, balance sheet and the profit and loss account. There is no material on record to show who are the members of the petitioner - company. The memorandum of association also does not give any indication about the alleged activity of sale of food articles to its members. There is no prohibition restricting the activity of the petitioner - company, i.e., supply of food and drinks to its members only. Considered the respective submissions of the learned counsel for the parties and examined the documents referred by them. Having noticed the arguments of both the sides, the following points for consideration fall before this court : 1. There is no prohibition restricting the activity of the petitioner - company, i.e., supply of food and drinks to its members only. Considered the respective submissions of the learned counsel for the parties and examined the documents referred by them. Having noticed the arguments of both the sides, the following points for consideration fall before this court : 1. Whether the petitioner - company is not a legal entity and is distinct from its members, being incorporated to constitute transfer of property by it to its members, within the meaning of "sale" as defined under the Trade Tax Act, as the petitioner contends ? 2. Whether the petitioner - club is a members' club and not proprietary club, and the petitioner - club and its members are one and the same thing ? 3. Whether impugned circular is bad as it on its own does not draw a distinction to an unincorporated association or body of persons, and an incorporated association or body ? Taking the first point first, the petitioner submits that there is no sale of eatables, etc., by the petitioner to its members within the meaning of "sale" under the Act, as the club and its members are not separate legal entities. It is difficult to agree with the said broad proposition. Indisputably, the petitioner is incorporated as a company and is registered under the Companies Act. The learned standing counsel is right in submitting that a company is different from its share holders. He referred Electronics Corporation of India Ltd. v. Secretary Revenue Deptt., Govt. of Andhra Pradesh AIR 1999 SC 1734 and Western Coalfields Ltd. v. Special Area Development Authority AIR 1982 SC 697 . He also placed reliance on Tata Engineering and Locomotive Co. Ltd. v. State of Bihar AIR 1965 SC 40 and Bacha F. Guzdar (Mrs.), Bombay v. Commissioner of Income-tax, Bombay [1955] 27 ITR 1 (SC); AIR 1955 SC 74 , to show that the members are different than the company. In Heavy Engineering Mazdoor Union v. State of Bihar AIR 1970 SC 82 it has been held that an incorporated company, as is well known, has a separate existence and the law recognizes it as a juristic person separate and distinct from its members. This new personality emerges from the moment of its incorporation and its rights and obligations are different from those of its shareholders. This new personality emerges from the moment of its incorporation and its rights and obligations are different from those of its shareholders. The company is holding its property and carrying on its business is not agent of its shareholders. Now, we take up the second point. It may be noted that although in the main arguments, it was not urged by the learned senior counsel for the petitioner that the petitioner is a members club or proprietorship club. However, in the rejoinder affidavit, a feeble attempt was made by him to show that the petitioner's club is members club. In the petition, no such averment has been made. However, in the rejoinder affidavit, for the first time it has been stated that the petitioner's club is members club. Clubs are generally classified into two main classes : (1) members club and (2) propriety club. In members club management of the affairs of club is retained in the hands of members themselves and the relationship between the club and members is governed by the doctrine of mutuality. Propriety club is controlled and administered by proprietor and proprietors who utilize surplus income as profit and appropriate such profit that is own benefit. There are wide variation in the nature and activity of propriety club and many of them are purely commercial undertaking and members do not enjoy any status than that of customers of proprietor. The learned standing counsel in reply with the help of audited account and balance sheet has tried to demonstrate before this court that the petitioner - company is or akin to propriety club. We were taken through the annexure CA. 4 which discloses the purchases and sales of the year 1999-2000 of refreshment, cold drink, ice cream, mineral water, tobacco and coupon sale. He submits that taking into consideration the large volume of these purchases and sale as disclosed therein, the petitioner is nothing but propriety club. We were also taken through the balance sheet, income and expenditure account for the year ended as on March 31, 2000 that the petitioner themselves has shown excess of income over the expenditure transferred to balance sheet. The matter requires consideration by the assessing officer if so raised by the petitioner and will be decided after taking into consideration the entire material available on record uninfluenced by any of the observations made in the present writ petition. The matter requires consideration by the assessing officer if so raised by the petitioner and will be decided after taking into consideration the entire material available on record uninfluenced by any of the observations made in the present writ petition. It will not be out of place to mention here the recent judgment of the apex court which was relied upon by the petitioner, in the case of Cosmopolitan Club v. State of Tamil Nadu [2009] 19 VST 456 (SC). In this very case, the apex court has remanded the matter to the statutory authority by making the following observation : "... Suffice it to say that in this case there was no determination by the fact-finding authorities regarding the relationship between the club and its members in the matter of supply of food and drinks; that is to say, was the club acting as an agent of the members or did property in food and drinks pass from the club to the members ?" The order of remand was passed with the direction to the Tribunal to find out the exact relationship between the parties in the matter of supply by the club of food and drinks to its members. In other words, it has been provided, that the principle of mutuality and agency among other circumstances shall be gone into by the Tribunal before which the appeal was pending. Viewed as above, here also there being no pleadings and material on record of the writ petition and the fact that the matter has firstly to be investigated upon by the fact-finding authority, the plea of mutuality, the nature of supplies made by the petitioner to its members and whether the petitioner club is members' club, etc., are left open to be decided by the concerned authority. To keep the record straight, the judgment in the case of Commissioner of Income-tax v. Bankipur Club Ltd. [1998] 109 STC 427 (SC); [1997] 226 ITR 97 (SC) which was relied upon by the petitioner may be noticed. The said decision has been rendered by the apex court with reference to the provisions of the Income-tax Act. The question therein was whether the activity of the assessee - club therein could be said to be a "trading activity". There the respondents were "members club". The said decision has been rendered by the apex court with reference to the provisions of the Income-tax Act. The question therein was whether the activity of the assessee - club therein could be said to be a "trading activity". There the respondents were "members club". The decision was rendered entirely under a different set of facts and has no bearing to the controversy in hand. The nature of supply of food and drinks by a club to its members was not in issue there. The court was called upon to decide the question of nature of the assessee's receipt. We see hardly any application of the aforesaid decision to the controversy involved herein. Now, we take up the third point for determination. The main thrust of the argument of the petitioner is that the impugned circular dated February 17, 2004 is violative of article 366(29A), clause (e) of the Constitution of India as also of section 2(h)(iv) of the U.P. Trade Tax Act. Now, we take up the third point for determination. The main thrust of the argument of the petitioner is that the impugned circular dated February 17, 2004 is violative of article 366(29A), clause (e) of the Constitution of India as also of section 2(h)(iv) of the U.P. Trade Tax Act. For the sake of convenience, article 366(29A) of the Constitution of India is reproduced below : "(29A) 'tax on the sale or purchase of goods' includes - (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (c) a tax on the delivery of goods on hire purchase or any system of payment by instalments; (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration; and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made." The definition of "sale" under section 2(h) of the Trade Tax Act has been amended in the light of article 366(29A) and is in line of the said article. The entire foundation of the petitioner's argument is on clause (v) of section 2(h) which provides that supply of foods by any unincorporated association or body of persons to members thereof for cash, deferred payment or other valuable consideration is included in the definition of "sale". The argument is that the petitioner being incorporated body, the said clause would not apply to it. The argument is that the petitioner being incorporated body, the said clause would not apply to it. The said argument is attractive but has no legs to stand. It is apt to notice the historical background of the legislation of clause (29A) of the Constitution of India. The entry 54 of List II of the Seventh Schedule to the Constitution empowers the State to levy "taxes on the sale or purchase of goods other than the newspapers, subject to the provisions of entry 92A of List II". The apex court in the State of Punjab v. Associated Hotels of India Ltd. [1972] 29 STC 474; [1972] 1 SCC 472 considered the plea of Associated Hotels India Limited which was running a hotel in Shimla that it was not liable to pay sales tax in respect of meals served to guests who came there to stay. It was held that supply of foodstuff essentially was one of the service by the hotelier, in the performance of which meals were served as part of an incidental to that service, such amenities being recorded as essential in well conducted model hotels. Such amenities, including meals, were part and parcel of service which was resulting in transaction between the parties. It was held that the Revenue was not entitled to split the transaction into two parts - one of service and other of sale of foodstuff. In the case of Northern India Caterers (India) Limited v. Lt. Governor of Delhi [1978] 42 STC 386; [1978] 4 SCC 36, the apex court dealt specifically with the levy of the sales tax upon the service of meals to casual visitors in a restaurant and held that it amounts to service after taking note of its earlier judgment as also the words of professor Beale. A review petition was filed in respect of the judgment in Northern India Caterers [1978] 42 STC 386; [1978] 4 SCC 36 which was dismissed. The Constitution (46th Amendment) Act, 1982 amended article 366 of the Constitution thereafter by inserting clause (29A) therein. By reason of this amendment, the State became entitled to levy tax on the supply of food and drinks. The State of U.P. also amended the definition of "sale" as it originally contained in section 2(h) of the Act in the line of clause (29A) of article 366. By reason of this amendment, the State became entitled to levy tax on the supply of food and drinks. The State of U.P. also amended the definition of "sale" as it originally contained in section 2(h) of the Act in the line of clause (29A) of article 366. The definition of "dealer" as contained in section 2(c) was also amended accordingly. The business of buying, selling, supplying or distributing goods directly or indirectly, for cash or deferred payment or commission, remuneration or other valuable consideration by a person who carries on in Uttar Pradesh is a "dealer" within the meaning of section 2(c) of the Act. The definition of "dealer" is very widely worded and includes therein not only buying and selling but also supplying or distributing the goods directly or indirectly. After the 46th Amendment of the Constitution there has been a sea change of the definition of "sale" within the meaning of the Constitution of India and the corresponding amendments in the U.P. Trade Tax Act. The learned standing counsel submits that the activity of the petitioner falls even in the main part of section 2(h) of the Act read with definition of "dealer" as contained in section 2(c). Clause (i) of section 2(c) provides that "a dealer includes a local authority, body corporate, company, any cooperative society, or other society, club, firm, Hindu undivided family ....". This being so, there is no doubt that the petitioner, incorporated as a company, is a "dealer" within the meaning of section 2(c) of the Act. The argument of the learned senior counsel for the petitioner is that the impugned circular dated February 17, 2004 issued by the Commissioner is violative of section 2(h) and article 366(29A) of the Constitution of India. The argument is that the Commissioner in the said circular has not drawn any distinction in between incorporated club and unincorporated club. The Commissioner according to the pleading of the petitioner has directed the Department to levy the tax on the sales and supplies by clubs to its members whether incorporated or unincorporated notwithstanding. Reliance was placed upon a judgment of the apex court in the case of the Joint Commercial Tax Officer, Harbour Division II, Madras v. Young Men's Indian Association, Madras [1970] 26 STC 241 wherein the respondent was a society registered under the Societies Registration Act. Reliance was placed upon a judgment of the apex court in the case of the Joint Commercial Tax Officer, Harbour Division II, Madras v. Young Men's Indian Association, Madras [1970] 26 STC 241 wherein the respondent was a society registered under the Societies Registration Act. The association was also running a mess altogether with a canteen serving the needs of the members and members were permitted to bring a guest but during of his stay in the hostel or of enjoying benefits of preparation of beverages was restricted and limited by the rules. A controversy arose with regard to the taxability of the food items and beverages supplied by the society to its members. The Sales Tax Department levied tax treating the transaction, i.e., the sale of refreshment and beverages as "sale" by the club to its members. The case of the assessee was that there is no transfer of property involved in the supply or distribution of goods by the club. The apex court at the bottom of page 246 posed the question - Whether the supply of various preparation by each clubs to its members involved a transaction of "sale" within the meaning of the Sale of Goods Act, 1930 and answered the same keeping in view the definition contained in section 2(n) read with Explanation I of the Madras General Sales Tax Act, and held that there is no transfer of property from one to another and there is no sale which would be exigible to tax. Noticeably, the afore-stated decision was rendered before 46th Constitution Amendment. After the said Constitution amendment, a very wide meaning has been assigned to the word "sale" by inserting clause (29A) in article 366 of the Constitution of India. Noticeably, the afore-stated decision was rendered before 46th Constitution Amendment. After the said Constitution amendment, a very wide meaning has been assigned to the word "sale" by inserting clause (29A) in article 366 of the Constitution of India. The corresponding Amendments have also been incorporated by the State Legislature in the State of U.P. Clauses (v) and (vi) of section 2(h) which are presently relevant, for the sake of convenience, are reproduced below : "2(h)(v) the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; and (vi) the supply, by way of or as part of any service or in any other manner whatsoever of goods, being food or any other article for human consumption or any drink (whether or not intoxicating) where such supply or service is for cash, deferred payment or other valuable consideration." Undoubtedly, clause (v) talks about the supply of goods by any unincorporated association or body ... to a member thereof. It does not follow that the said clause is applicable to supply of goods by any unincorporated association or body alone. An incorporated association or body being a separate legal entity, there was no such need to make a specific provision. There are two parties, namely, the body corporate and its members. Clause (v) has been enacted to provide that even supplies by unincorporated body or association of body of persons to its members is included in the definition of "sale", by way of abundant precaution. There is another aspect of the case. Clause (vi) of section 2(h) makes it clear that supply, by way of or as part of any service or in any other manner whatsoever of goods, being food or any other article for human consumption or any drinks, is a sale within the meaning of section 2(h). Even assuming for the sake of argument, the clause (v) would not apply to incorporated bodies, in the case like the petitioner, the supply, by way or as the part of any service or in any other manner whatsoever will be deemed to be sale to its members. While interpreting the extended meaning of definition of "sale", it is useful to keep in mind the background of the legislation. While interpreting the extended meaning of definition of "sale", it is useful to keep in mind the background of the legislation. The apex court has considered in depth article 366(29A) particularly in relation to transfer of property in goods involved in execution of works contract in building activity in Builders Association of India v. Union of India [1989] 73 STC 370 (SC); AIR 1989 SC 1371 . It considered the recommendations of the Law Commission by its 61st report. The Law Commission recommended certain amendments to the Constitution. It was found that there were complaints from the State that there was a large scale leakage of sales tax revenue by adoption of device such as hire purchase system. In the year 1982 the Parliament passed the 46th Amendment amending the Constitution in several respects in order to bring many of transactions in which property in goods passed but were not considered as sale for the purpose of levy of sales tax, within the scope of power of States to levy sales tax. The object of new definition introduced in clause (29A) of article 366 of the Constitution is, therefore, to enlarge scope of "tax on sale or purchase of goods" wherever it occurs in the Constitution so that it may include within its scope the transfer, delivery or supply of goods that may take place under any of the transactions referred to in sub-clauses (a) to (f) thereof wherever such transfer, delivery or supply becomes subject of levy of sales tax. Article 286 was also amended. In view of the above discussion, we see no illegality in the impugned circular of the Commissioner, and the submission of the petitioner to the contrary is misconceived. It was also submitted that since the Commissioner has issued a circular, it will bind all the assessing authorities, which is factually not correct. In the case on hand, the reassessment proceedings were initiated earlier in point of time than the issue of the impugned circular. It was rightly pointed by the learned standing counsel that in the writ petition No. 324 of 2005, even the petitioner by not correctly stating the fact, has got the regular assessment proceedings stayed relating to the assessment years 1997-98 and 2000-01 and 2001-02. There was absolutely no justification for getting the regular assessment proceeding stayed through the present writ petition. There was absolutely no justification for getting the regular assessment proceeding stayed through the present writ petition. Lastly, reliance was placed upon a Division Bench decision of this court in the case of S.K. Traders, Modi Nagar, Ghaziabad v. Additional Commissioner, Grade I, Trade Tax, Zone, Ghaziabad [2009] 26 VST 601; [2008] UPTC 329 and it was submitted that while granting the sanction, the authority concerned has not recorded any reason, the permission is liable to be quashed. On the facts of the present case, we are not impressed by the said argument at all. The Additional Commissioner I, Kanpur Zone, Kanpur by the two orders both dated September 24, 2003 has granted the permission under section 21(2) of the Act to reopen the case relating to the assessment years 1998-99 and 1999-2000. Before granting the permission, notices were issued to the petitioner to file objections, if any. But no objection was filed by the petitioner and as such the authority concerned has not committed any illegality in granting the permission. During the course of the argument, the learned senior counsel for the petitioner also made a reference of the order passed by the Deputy Commissioner (Appeals) dated August 31, 1998 relating to the assessment year 1994-95 and it was submitted that grant of permission under section 21(2) or the initiation of reassessment proceedings amounts to change of opinion. It is difficult to agree with him. The petitioner was assessed ex parte in the said assessment year 1994-95 on the basis of the certain information received. The appellate authority examined the said information and was satisfied that the said information was inadequate to hold the petitioner a dealer. The information was that some demonstration of cold drink by Pepsi Company was made and the said company after the demonstration had removed its machines and goods. On these facts, it was found that the petitioner - company is not a dealer and no cold drink was sold. The amended definition of "sale" as contained in section 2(h) was not up for consideration before the appellate court, nor was considered. The appellate authority proceeded to address the controversy treating that the assessee was a society nor indulged in sale and purchase transaction and is running on no-profit and no-loss basis. On these facts, it cannot be said that initiation of reassessment proceeding is based on change of opinion. The appellate authority proceeded to address the controversy treating that the assessee was a society nor indulged in sale and purchase transaction and is running on no-profit and no-loss basis. On these facts, it cannot be said that initiation of reassessment proceeding is based on change of opinion. No other point was pressed. There is no merit in the writ petition. No separate arguments were advanced in the connected writ petitions. All the writ petitions are, therefore, dismissed. No order as to costs.