- (1.) By both the writ petitions, the petitioner has assailed the approval orders dated March 18, 2011 and May 5, 2011 whereby the competent authority has allowed the initiation of reassessment proceedings for the assessment year 2004-05 (State and Central). Brief facts of the case are that the petitioner is a registered dealer under the U.P. Trade Tax Act, 1948 as well as under the Central Sales Tax Act, 1956. For the assessment year under consideration, the assessment was made on March 23, 2007 and exemption was allowed. Further, vide order dated July 10, 2009 an order under section 22 of the Act was passed and the exemption was disallowed. Being aggrieved, the petitioner filed the appeals before the first appellate authority on August 11, 2009. The same were dismissed. The petitioner filed second appeals before the Tribunal which were also dismissed on August 26, 2010. Not being satisfied, the petitioner has filed T.T.R. Nos. 288 and 289 of 2010 before this court, whereupon the order passed by the Tribunal was set aside.
(2.) On March 8, 2011, the Department has issued notice for approval under sub-section (2) of section 21 of the Act for initiating reassessment proceedings. The petitioner preferred two writ petitions bearing Nos. 3159 and 3161 of 2011 on March 31, 2011 before this court challenging the approval granted by the Department. This court on April 4, 2011 directed the petitioner to make a fresh representation before opposite party No. 2 within a period of two weeks and the same was to be decided by a speaking and reasoned order. However, on April 13, 2011, assessing authority has completed the reassessment ex parte. On April 15, 2011, the petitioner filed representation before opposite party No. 2 as per direction given by this court on May 5, 2011. The said representation was rejected. Being aggrieved, the petitioner has again filed the present writ petitions.
(3.) With this background, Sri Pradeep Agarwal, learned counsel for the petitioner submits that the approval under section 21(2) of the Act was wrongly granted by opposite party No. 2 as there was no reason to believe for the tax evasion. He further submits that form 3C(1) was issued by the U.P. State Food and Essential Commodities Corporation to the petitioner to establish that the issuing dealer accept the liability of tax on the purchase or sale of goods under rule 12B of the Act. According to him, the foodgrain so purchased is delivered by the U.P. State Food and Essential Commodities Corporation to the petitioner towards their contribution to the national pool, since the quantum of tax is reimbursed by the petitioner to the U.P. State Food and Essential Commodities Corporation, thus neither the proceedings under section 22, nor under section 21 of the Act could be initiated. At best, the order could have been revised under section 10B of the Act by the revising authority. He also submits that for the purpose of initiating proceedings under section 21 of the Act, it is incumbent upon the opposite parties to have a "reason to believe" that any part of the turnover has escaped assessment or has been under-assessed. According to him, the proceedings under section 21 of the Act could not be initiated for correcting the mistake committed by the assessing authority, if any, during the course of assessment proceeding. Its legality and propriety can be examined by opposite party No. 1 under section 10B of the Act. He also argued that the proceedings under section 21 cannot be initiated before the period of limitation for initiation of proceedings under section 10B has expired. For the purpose, he relied on the ratio laid down in the following cases : 1. Ganga Saran & Sons P. Lid. v. Income-tax Officer, 1981 130 ITR 1; and 2. Super Chemicals Agra & Apollo Tyres Ltd. v. Commissioner, Trade Tax,2010 NTN 42.;