Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1783 (ALL)

PRAVIN KUMAR GUPTA v. STATE OF U. P.

2010-05-26

BHARATI SAPRU, RAJESH KUMAR

body2010
JUDGMENT By means of this present writ petition, the petitioner is challenging the notice under section 21 for the assessment year 1997-98. During the year under consideration, the petitioner has imported high speed diesel for Rs. 20,99,004 and made the sales of such high speed diesel for Rs. 21,31,610 and claimed the exemption on the sale of such imported high speed diesel under the notification T.I.F.-2-3111/XI-9(460)/94-U.P. Act-15-48-order-97, dated September, 30, 1997 on furnishing of the declaration as required under the notification. The assessing authority while passing the original assessment order under rule 41(8) has considered the notification and the certificate filed by the petitioner, as required under the notification and accordingly granted the exemption on the sales of such imported high speed diesel. Notice under section 21 has been issued with a view to levy tax on the sales of such imported high speed diesel. The learned counsel for the petitioner submitted that the notice under section 21 has been issued only on account of change of opinion. He submitted that the requisite certificate as contemplated under the notification was filed before the assessing authority and the assessing authority after the examination of such certificate, has granted the exemption. There is no evidence on record to show that such certificate was wrong or false and, therefore, the initiation of proceeding is without any material that the exemption has been wrongly granted and merely on account of change of opinion. The learned standing counsel has been called upon to reply to the submissions of the learned counsel for the petitioner. Shri U. K. Pandey, learned standing counsel is not able to show any material on the basis of which an inference could be drawn that the exemption has been wrongly allowed. There is no material on record to show that the declaration filed by the petitioner is false or wrong. In the counter-affidavit also the case of the Department is that the petitioner has not complied with the requirement of the notification and has not fulfilled the condition of the notification dated September 30, 1997 without disclosing that which condition has not been fulfilled. On these facts, we are of the view that the proceeding under section 21 has been initiated only on account of the change of opinion without any material to form the belief that the exemption has been wrongly allowed and there was escaped assessment. On these facts, we are of the view that the proceeding under section 21 has been initiated only on account of the change of opinion without any material to form the belief that the exemption has been wrongly allowed and there was escaped assessment. In the result, the writ petition is allowed. The notice under section 21 dated March 8, 2002 for the assessment year 1997-98 annexure 5 to the writ petition is quashed. No order as to cost.