- (1.) This is second round litigation in the High Court. Earlier the petitioner had filed Writ Petition No. 483 of 2002 which was decided on July 13, 2007 (S.K. Traders v. Additional Commissioner, Grade-I, Trade Tax, Zone, Ghaziabad, 2009 26 VST 601) by allowing the writ petition but the matter was restored back to the authority concerned to redecide the order granting approval under section 21(2) of the U.P. Trade Tax Act (hereinafter referred to as "the Act"). The earlier order was set aside as it lacked reasons for granting sanction. After remand again, by the impugned order dated March 23, 2009 permission has been granted under the proviso to section 21(2) of the Act to reopen the assessment relating to year 1994-95 (U.P.). The background facts are as follows: The petitioner is a trader of broken glass which has been carried in its own account as well as in commission agency. For the relevant assessment year 1994-95 the petitioner had sold broken glass for Rs. 1,30,27,655.45. The said broken glass was purchased within the State of Uttar Pradesh from unregistered dealers in its commission agency business from Kabaries. The Assistant Commissioner (Assessment), Trade Tax, Modinagar, Ghaziabad, the assessing authority accepted the account books of the petitioner and granted exemption to the turnover of such broken glass. Thereafter, respondent No. 2 sought permission from the Additional Commissioner, Grade-I, Trade Tax, Zone, Ghaziabad to reopen the assessment under the provisions of sub-section (2) of section 21 of the Act on the ground that the petitioner is deemed manufacturer and as such his turnover of broken glass is taxable.
(2.) Objections were filed by the petitioner against the above proposal of the assessing authority. Initially the permission was granted by the respondent No. 2 which was challenged in the earlier writ petition referred to above, successfully. After remand by the High Court, now again permission to reopen the assessment has been granted by the impugned order dated March 23, 2009 on the ground that broken glass is "waste product". Such broken glass comes out from the factory while filling the bottles. These broken glasses are returned to the dealers who had supplied the glass bottles which they in turn sold them to Kabaries and as such, the purchases of broken glass from Kabaries should be treated as "waste product".
(3.) Heard Sri Kunwar Saxena along with Sri Krishna Agarwal, learned counsel for the petitioner and Sri C.B. Tripathi, learned Special Counsel for the respondents.;