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2015 DIGILAW 3602 (ALL)

S/S Aditya Gas Service v. State of U. P.

2015-11-19

TARUN AGARWALA, VINOD KUMAR MISRA

body2015
JUDGMENT We have heard Shri Aditya Pandey, learned counsel for the petitioner and Shri C.B. Tripathi, the learned Special counsel for the State. 2. The petitioner is a registered dealer under the provisions of U.P Trade Tax Act and had filed his return for the assessment year 2006-2007 which was accepted under the summary scheme. Subsequently, the Assessing Officer found that the petitioner has received an amount of Rs.5,86,931/- from Indian Oil Corporation towards transportation charges which according to the Department, was taxable under section 3-F as a transfer of right to use the Vehicle. Accordingly, a proposal was forwarded by the Assessing Officer seeking permission to re-open the assessment proceedings under section 21(2) of the U.P Trade Tax Act which permission was sanctioned after giving due notice and opportunity of hearing to the petitioner by an order dated 7.3.2013. 3. Subsequently, notices for re-consideration of the assessment was issued by the Assessing Authority on 11.3.2013. The petitioner, being aggrieved by the Sanction Order dated 7.3.2013 and the consequential notice dated on 11.3.2013, has filed the present writ petition. 4. After hearing the learned counsel for the parties, we are of the opinion that whether the petitioner has entered into an agreement with Indian Oil Corporation for the transportation of the petroleum products from one place to another and has received transportation charges or whether the Indian Oil Corporation is in control and possession of the vehicle is a question of fact which is required to be determined by the Assessing Authority after appreciation of the evidence. 5. The Court in a writ jurisdiction cannot decide such factual controversies. We are of the opinion that since this matter was not dealt with in the assessment order, a notice under section 21(2) was rightly issued. It cannot be said that the notice for re-assessment was an invalid notice. 6. The learned counsel for the petitioner has placed reliance upon a decision of this Court in Commissioner of Trade Tax, U.P. Lucknow v. Nand Transport Co.Ujhani, Budaun 2008 NTN (Vol.36) 47 as well as the decision in M/s Ahuja Goods Agency and Another v. State of U.P and another 1997 U.P.T.C. 629. 7. In our view, it would be open to the petitioner to place this judgement before the Assessing Authority at the time of reconsideration of the matter in re-assessment proceedings. 7. In our view, it would be open to the petitioner to place this judgement before the Assessing Authority at the time of reconsideration of the matter in re-assessment proceedings. The Assessing Authority will consider the matter and apply its own mind and will not be governed by any observation made by the Additional Commissioner in the sanction order which holds that the petitioner is liable to pay tax on transportation of the goods. 8. The writ petition is dismissed with the aforesaid observations.