R.R.Rastogi, J. - (1.) The Commissioner, Sales Tax, Lucknow, has filed this revision under Section 11(1) of the U. P. Sales Tax Act, hereinafter "the Act". It relates to the assessment year 1972-73. The respondent-assessee carried on business in sales of M. S. tubes and tabular sheds as also undertook contract work. For the assessment year 1972-73 the assessee had disclosed its gross turnover at Rs. 2,23,332.53 and net at Rs. 2,13,026.13. The assessee had claimed exemption in regard to the turnover of agricultural implements amounting to Rs. 7,175 and of construction work amounting to Rs. 3,031 42. The accounts of the assessee were accepted and exemption was allowed on these turnovers as claimed. Further, the net turnover represented sales of M. S. tubes at Rs. 1,26,401.13 and of tabular sheds at Rs. 86,625. In regard to these sales the assessee's claim was that since these items were declared goods under Section 14 of the Central Sales Tax Act, hereafter referred to as "the Central Act", he was liable to tax at 3 per cent. This contention as well was accepted by the Sales Tax Officer and in this way total tax liability of Rs. 6,390.78 was raised. Subsequently, it was found by the Sales Tax Officer that proper rate of tax had not been applied on the disclosed turnover and exemption too had been wrongly allowed in respect of the turnover of construction work. Accordingly action was taken under Section 21 of the Act and a notice was issued to the assessee. The assessee contested the notice on the grounds that action was not justified since no fresh material had been brought on record and merely as a result of change of opinion such action could not be taken. This objection was repelled by the Sales Tax Officer and he levied tax on the turnover in respect of construction work at 4 per cent, on sales of M. S. tubes at 6.5 per cent and on sales of tabular sheds at 4 per cent. This resulted in an additional liability of Rs. 5,411.52 and to that was added a sum of Rs. 937.30 by way of interest.
(2.) The assessee's appeal having failed he took up the matter in revision before the Additional Judge (Revisions), Saharanpur, and challenged the validity of initiation of proceedings under Section 21 of the Act. The learned Additional Judge (Revisions) did not agree with the assessee and held that Section 21 of the Act could be invoked if proper rate of tax had not been applied and also the exemption had been wrongly allowed. However, in his opinion there can be no doubt that each and every error cannot be set right within the purview of Section 21 of the U. P. Sales Tax Act. Merely on the basis of a change of opinion either about the rate of tax or about exemption, Section 21 could not be invoked. On that view it was held that since in the original assessment it had been accepted that the aforesaid two items were declared goods and that the assessee was entitled to exemption in respect of the out-turn of construction work, on second thoughts that order could not be interfered with. Accordingly the assessment made under Section 21 of the Act was quashed. It is against that order the present revision has been directed.
(3.) It would be seen that the gross turnover declared by the assessee represented sales of tabular sheds, M. S. tubes and agricultural implements and receipts from contract work. So far as the sales of agricultural implements are concerned, exemption had been rightly allowed and that item did not figure in the proceedings under Section 21 of the Act. As regards the out-turn in respect of the contract work, since the question is not free from doubt as to whether this out-turn represented sales or supplies made in the course of the works contract, I agree with the learned Additional Judge (Revisions) that action could not have been taken under Section 21 since that would have been only as a result of second thought. It is now settled that an action under Section 21 of the Act cannot be taken as a result of second thought or change of opinion.;