- (1.) We have heard Sri Praveen Kumar for the petitioner. Sri C.B. Tripathi appears for the respondent-Department. The petitioner is aggrieved by notice dated May 21, 2007, issued by Additional Commissioner, Grade-I, Trade Tax, Ghaziabad Zone, Ghaziabad, under section 21(2) of the U.P. Trade Tax Act, 1948 (in short, "the Act") for reassessment on the ground that the turnover of the electronics goods sold by the petitioner, namely DVD and VCD players, were wrongly taxed at the rate of eight per cent under the residuary entry 75(ii) whereas the items are covered under entry 75(i)(a), which includes; television, video cassette recorder, video cassette player, satellite receiver, wireless set, video cassette, video games and electronics toys at the rate of 12 per cent.
(2.) Sri Praveen Kumar, appearing for the petitioner submits that in the assessment order for the assessment year 2003-04 dated March 30, 2006, the Deputy Commissioner (Tax Assessment)-12, Trade Tax, Ghaziabad--the assessing authority, taxed the turnover of Rs. 92,73,520 on imported DVD and VCD players (electronics) sold within State of U.P. at the rate of eight per cent. In respect of some of the consignments, namely, bill No. 47 dated February 14, 2004 and bill No. 52 dated March 15, 2004, the petitioner's contention that the trade tax was wrongly charged at the rate of 12 per cent was accepted.
(3.) Sri Praveen Kumar submits that in the show-cause notice dated May 21, 2007, under section 21(2) of the Act, the Additional Commissioner, Trade Tax, Ghaziabad, has taken a ground that the turnover of DVD and VCD players (electronics) is to be charged at the rate of 12 per cent and not at the rate of eight per cent. Along with amendment application, the petitioner has annexed the order dated June 29, 2007 in which the Additional Commissioner has relied on an order dated February 27, 2007 passed by Commissioner, Trade Tax, U.P., under section 35 of the Act, in which the Commissioner has clarified that VCD player, stereo cassette player, video cassette player, and video cassette recorder are taxable at 12 per cent. The Additional Commissioner rejected the objection raised by the petitioner that the technology used in video cassette player/recorder, i.e., VCP/VCR is different than the technology used in video compact disc player/digital videos disc player, i.e., VCD and DVD. The petitioner had submitted before the Additional Commissioner that for transmission and receiving, ''rotating head" technology is used in VCR and VCP, which are run with the help of cassettes, whereas in VCD and DVD, Infrared Diode is used for transmission and receiving based on laser beam technology; the information in VCR and VCP are stored in magnetic wave, with a small storage capacity, whereas VCD and DVD stores information based on BITE theory and its storage capacity is very high; the power consumption in VCR and VCP is high as compared to VCD and DVD; in VCP and VCR discreet components are used, whereas in VCD and DVD, large scale semi conductor devices are used. The VCP and VCR is based on analog technology, whereas VCD and DVD is based on digital technology, and thus two categories are different commodities.;