- (1.) By means of the present writ petition, the Petitioner seeks the following reliefs: (i) To issue a suitable writ, order or direction in the nature of certiorari, quashing the reassessment proceedings under Section 21 of the U. P. Trade Tax Act, 1948 for the assessment years 1997-98 to 2000-01 in pursuance of notices dated March 5, 2004 (annexure 10 to the writ petition). (ii) To issue a writ, order or direction in the nature of certiorari quashing the circular dated September 30, 2003 directing for the imposition of tax on poly pouches in which the country liquor was packed and sold (annexure 12 to the writ petition). (iii) To issue a writ, order or direction in the nature of mandamus or prohibition be issued restraining/prohibiting Respondent No. 2 from taking any proceedings for imposition of tax on poly pouches for the assessment years 1997-98 to 2000-01 under the U. P. Trade Tax Act. (iv) To issue any other suitable writ, order or direction as this honourable court may deem fit and proper in the circumstances of the case in favour of the Petitioner against the Respondents. (v) To award the costs of the petition to the Petitioner throughout.
(2.) The Petitioner is a public limited company incorporated under the Indian Companies Act, 1956 and is registered both under the U. P. Trade Tax Act, 1948 as well as under the Central Sales Tax Act, 1956. The Petitioner has its sugar factory as well as its distillery at Shamli in the district of Muzaffar Nagar and has got another distillery known as Pilkhani Distillery in the district of Saharanpur. The Petitioner is engaged in the manufacturing and selling of country liquor. The country liquor is exempted from tax under the notification issued in exercise of power under Section 4 of the U. P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act"). The Petitioner had sold the country liquor in packed form, in bottles or poly pouches. Admittedly, the prices of country liquor and prices of bottles or poly pouches had been separately charged in the bills. For the assessment years 1997-98 to 2000-01, both under the U. P. Trade Tax Act as well as under the Central Sales Tax Act, in the original assessments, the values of the bottles or poly pouches had not been assessed to tax. For the assessment years 1997-98 and 1998-99, the assessing authority has; examined the claim of exemption and held that it was not liable to tax in view of Section 3AB of the Act inserted in the statute with effect from August 1, 1990 by U. P. Act No. 28 of 1991.
(3.) It appears that when notice under Section 21 of the Act dated May 22, 1999 was issued for the assessment year 1997-98, the Petitioner filed Writ Petition No. 737 of 1999 challenging the said notice under Section 21 of the Act. Subsequently the writ petition has been withdrawn. In paragraph 28 of the writ petition, it is stated that the assessing authority has dropped the proceedings under Section 21 of the Act for the assessment year 1997-98. However, a fresh notice dated March 5, 2004 has been issued under Section 21 of the Act for the assessment year 1997-98 along with notice dated March 5, 2004 under Section 21 of the Act for the assessment years 1998-99 to 2000-01 on the basis of circular dated September 30, 2003 with a view to levy the tax on the values of bottles and poly pouches on the ground that the Petitioner had imported the bottles and poly pouches from outside the State of U. P. and had separately charged the values of packing materials from the customers, therefore, it is liable to tax and since they have not been assessed to tax in the original assessment orders, there was escaped assessment. Challenging the aforesaid notices under Section 21 of the Act, the Petitioner filed the present writ petition.;