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2010 DIGILAW 2615 (ALL)

DWARIKESH SUGAR INDUSTRIES LIMITED v. DEPUTY COMMISSIONER (ASSESSMENT) TRADE TAX, NAJIBABAD

2010-08-27

BHARATI SAPRU, RAJESH KUMAR

body2010
JUDGMENT RAJES KUMAR :- By means of the present writ petition, the petitioner is challenging the order dated January 7, 2004 passed by the Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad by which he has granted approval under the proviso to section 21 of the U.P. Trade Tax Act (hereinafter referred to as, "the Act") to initiate the proceeding beyond the normal period of limitation for the assessment year 1997-98 and the notice issued under section 21 of the Act by the assessing authority in pursuance of the order passed by the Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad. It appears that the assessing authority had sought approval to re-open the proceeding on the ground that after passing of the assessment order dated July 18, 1998 on an inquiry made by the S.T.O. (SIB) from the seized books of account on March 31, 2000, it was found that the petitioner had purchased diesel from outside the State of U.P. for Rs. 36,27,027 which was provided to the transporter against the price for transportation of sugarcane which amounts to sale on which tax could not be levied in the assessment order. Before passing the order under the proviso to section 21(2) of the Act, the Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad had issued notice to the petitioner and provided opportunity to file reply. The petitioner filed reply and contended that the sale of diesel was not made. The diesel was given to the transporter for transportation of sugarcane which did not fall within the purview of "sale". The Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad, did not accept the explanation of the petitioner and granted approval. On the basis of the alleged material, notice under section 21 of the Act has been issued by the assessing authority. Heard Sri Bharat Ji Agrawal, learned senior advocate, assisted by Sri Piyush Agrawal, learned counsel appearing on behalf of the petitioner and learned standing counsel. The contention of the petitioner is that the petitioner was engaged in the business of manufacture and sale of sugarcane. The petitioner had purchased diesel from outside the State of U.P., recorded such purchases in the books of account and such diesel had been issued to the transporters for transporting the petitioner's own sugarcane. Therefore, the supply of diesel would not be termed as "sale". The petitioner had purchased diesel from outside the State of U.P., recorded such purchases in the books of account and such diesel had been issued to the transporters for transporting the petitioner's own sugarcane. Therefore, the supply of diesel would not be termed as "sale". The learned standing counsel submitted that the petitioner did not disclose the purchases of diesel from outside the State of U.P. during the course of the assessment proceeding and also did not disclose that such diesel was issued to the transporter for transporting the sugarcane. He submitted that the S.T.O. (SIB) in a survey made at the premises of the petitioner, seized various books of account and found that the petitioner had imported diesel from outside the State of U.P. and supplied the same to the transporter and received the value of the diesel from the transporters. Therefore, the supplies of diesel to the transporters were sales by the petitioner. He submitted that in view of the decisions of the apex court in the case of N.M. Goel & Co. v. Sales Tax Officer, Rajnandgaon reported in [1989] 72 STC 368; [1990] UPTC 865 and in the case of Karya Palak Engineer, C.P.W.D., Bikaner v. Rajasthan Taxation Board, Ajmer reported in [2004] 136 STC 641 (SC); [2004] 25 NTN 1004 the supply of diesel against price amounts to sale. Such sales had not been disclosed by the petitioner during the course of the original assessment proceeding and, therefore, this aspect of the matter had not been adjudicated by the assessing authority in the original assessment order. He submitted that the information given by the S.T.O. (SIB) constitutes material to form the belief that there was a escaped assessment. Therefore, the approval to initiate the proceeding under section 21 of the Act has been rightly granted by the Additional Commissioner, Grade 1, Trade Tax, Moradabad Zone, Moradabad and the assessing authority has legally issued the notice under section 21 of the Act. We have considered the rival submissions of learned counsels for the parties and perused the record. A perusal of the original assessment order reveals that the petitioner had not disclosed the import of diesel from outside the State of U.P. and had not disclosed its supplies to the transporters against the price. Therefore, this aspect of the matter had not been considered at all in the original assessment order. A perusal of the original assessment order reveals that the petitioner had not disclosed the import of diesel from outside the State of U.P. and had not disclosed its supplies to the transporters against the price. Therefore, this aspect of the matter had not been considered at all in the original assessment order. After passing of the assessment order a survey made by the S.T.O. (SIB) on March 31, 2000 in which certain books of account had been seized and on inquiry it was found that the petitioner had imported diesel and had supplied such diesel to the transporters and for which received the price. Therefore, it is not the case of change of opinion. We are further of the view that the information given by the S.T.O. (SIB) which was based on the documents seized by them at the time of survey dated March 31, 2000 that the petitioner had purchased diesel from outside the State of U.P. and supplied the same to the transporters and received price for such diesel and not disclosed during the course of the original assessment proceeding, constitute the material to form the belief that there was a escaped assessment and on these facts the Additional Commissioner, Grade I, Trade Tax, Moradabad Zone, Moradabad, had rightly granted the approval under the proviso to section 21(2) of the Act and the assessing authority was wholly justified in issuing the notice under section 21 of the Act. It may be mentioned here that the petitioner had not disputed the purchases of diesel from outside the State of U.P. The only submission is that such diesels were supplied to the transporters for the transportation of own sugarcane and, therefore, the supply of diesel to such transporters was not sale. Whether the supply of such diesel to the transporters amounts to sale or not is a matter of adjudication. Admittedly, this issue had not been adjudicated in the original assessment proceeding. Therefore, it is not the case of change of opinion. It will be open to the petitioner to raise pleas in support of its claim before the assessing authority in the reassessment proceeding which shall be considered in accordance with law. In view of the above, the writ petition is devoid of merit and is accordingly dismissed without any order as to costs.