- (1.) By means of the present petition the Petitioner seeks the following reliefs: (i) that a suitable writ, order or direction in the nature of writ of certiorari be issued quashing the reassessment proceedings under Section 21 of the U.P. Trade Tax Act, 1948 for the assessment years 1997-98, 1998-99, 1999-2000 and 2000-01 in pursuance of the notice dated December 3, 2003 (enclosed herewith as annexure 7 to this petition); (i-a) that a suitable writ, order or direction in the nature of certiorari be issued quashing the orders dated November 24, 2003 passed by the Additional Commissioner, Grade I, Trade Tax, Bareilly Zone, Bareilly, Respondent No. 3 (enclosed as annexure 6 to the writ petition) for the assessment years 1997-98 to 2000-01 ; (ii) that a suitable writ, order or direction in the nature of certiorari be issued quashing the circular dated September 30, 2003, directing for imposition of tax on poly pouches in which the country liquor was packed and sold (enclosed as annexure 4 to this writ petition) ; (iii) that a suitable writ, order or direction in the nature of mandamus or prohibition be issued restraining/prohibiting the Respondent No. 4 from taking any proceedings for imposition of tax on poly pouches for the assessment years 1997-98, 1998-99, 1999-2000 and 2000-01 ; (iv) that any other suitable writ, order or direction as this honourable court may deem fit and proper in the circumstances of the case be also issued in favour of the Petitioner.
(2.) The brief facts of the case are that the Petitioner is a public limited company incorporated under the Indian Companies Act, 1956 and is registered under the U.P. Trade Tax Act (called, "the Act", for short) as well as under the Central Sales Tax Act (called, "the Central Act", for brevity). The Petitioner had its sugar factory as well as distillery in the district of Bareilly. The Petitioner is involved in the sale of Indian-made country liquor (country spirit) and sale of molasses, etc. Manufacturing and sales of country liquor are strictly controlled and governed by the provisions of the U.P. Excise Act and Rules. Indian-made country liquor is exempted from tax under the notification issued in exercise of power under Section 4 of the Act. Therefore, its sales are exempted within the State of U. P. as well as under the Central Act.
(3.) During the assessment years 1997-98, 1998-99, 1999-2000 and 2000-01, both under the Act and Central Act, the Petitioner has sold country liquor in a packed condition in bottles and poly pouches. The bills of the country liquor were made to the Excise Department and the payments in respect of liquor were received from the Excise Department, while separate bills have been issued in favour of the licensee of the country liquor and the payments of such packing materials have been received from them. The Petitioner claimed exemption on the same packing material, viz., bottles and poly pouches, on the ground that country liquor was sold in packed condition and since the country liquor was exempted from tax, therefore, in view of the provisions of Section 3AB of the Act, the packing material was also not liable to tax for all the assessment years. The assessing authority passed the assessment orders without levying the tax on such packing materials. After passing the assessment orders the assessing authority sent proposal to the Additional Commissioner for the grant of approval to initiate the proceeding under Section 21 of the Act on the ground that since the bills have been separately raised in respect of packing materials to the licensee and the payments have been received from the licensee, the turnover of such packing materials is not liable to be exempted under the provisions of Section 3AB of the Act and are liable to tax at the rate applicable to it. It appears that the proposal has been sent on the basis of letter dated September 26, 2003 issued by the Government, which has been circulated by the Commissioner through its circular dated September 30, 2003. On receipt of the proposals for all the four assessment years, the Additional Commissioner has issued notices to the Petitioner for providing opportunity. The Petitioner filed separate replies for all the assessment years taking common pleas. The Additional Commissioner, vide impugned orders, granted approval on the basis of the reasons given in the proposal and, in pursuance thereof, the impugned notices have been issued by the assessing authority under Section 21 of the Act.;