RAM SURAT RAM (MAURYA), J. - (1.) HEARD Sri Ashok Kumar, counsel for the petitioner and Sri C.B. Tripathi, Special Counsel for State of U.P., for the respondents.
(2.) THE aforementioned writ petition has been filed for quashing the assessment order dated 23.03.2007 for the Assessment Year 2004-05, under U.P. Trade Tax Act, 1948 (hereinafter referred to as the Act) by which it has held that the Inverter and UPSS (Uninterrupted Power Supply System) are the electrical implements and not electronic goods as such trade tax at the rate of 10% was payable on the sale of these goods and trade tax at the rate of 12% was payable on the sale of battery and as the petitioner has paid trade tax on these goods at the rate of 4% as such liability of differential amount has been assessed upon him. The petitioner has further prayed for mandamus directing the respondents not to realize the trade tax liability in pursuance of the aforesaid assessment order. The facts giving rise to the present writ petition are that the petitioner was carrying on business of purchase and sale of Inverter, UPSS (Uninterrupted Power Supply System), it's spare parts and batteries. The petitioner was registered under U.P. Trade Tax Act, 1948 and Central Sales Tax Act. It is stated that the petitioner had been paying trade tax on the sale of Inverters, UPSSs and batteries at the rate of 4%. For the Assessment Year 2002-03, the Assessing Officer by order dated 02.05.2005 has accepted the return of the petitioner. For the Assessment Year 2003-04, the Assessing Officer by order dated 29.03.2006 assessed the tax liability on the petitioner on these goods at the rate of 10%. The petitioner filed an appeal from the assessment order for the Assessment Year 2003-04, which was allowed by the Joint Commissioner (Appeals) and it was held that Inverters and UPSSs sold by the petitioner were electronic goods and trade tax at the rate of 4% was payable on it. But the Assessing Officer, again for the Assessment Year 2004-05, by the impugned order has assessed the trade tax liability on Inverters and UPSSs at the rate of 10%. It has stated that the Commissioner of Trade Tax U.P. has issued a Circular dated 02.09.2000 in which it has been held that Inverters, and UPSSs work as 'power supply devices' and trade tax at the rate of 4% was payable on it. The controversy in this respect has been settled by the order of the appellate authority inter-partes in the previous year as well as by the orders of the Tribunal and judgements of this Court in various other cases and it has been finally decided that Inverters, and UPSSs are 'power supply devices' and trade tax at the rate of 4% was payable on it. The impugned order, being contrary to the appellate order inter-partes for the Assessment Year 2003-04 as well as judgements of this Court, is liable to be set aside.
(3.) THE respondents have filed Counter Affidavit in which it has been stated that Inverters, and UPSs are electrical goods and trade tax at the rate of 10% was payable on it. The Commissioner of Trade Tax U.P. has issued a Circular dated 03.11.2003 clarifying the legal position that trade tax at the rate of 10% was payable on sale of Inverters, and UPSs. The impugned Assessment order does not suffer from any illegality.;