- (1.) THE petitioner is a company incorporated under Indian Companies Act and is engaged in the business of manufacture of Steel Almirahs, Furnitures, Security items, M.S. components, Typewriters, Electronic goods, Fax Machines, office equipments, etc.
(2.) FOR the assessment year 2001 -02 under the Central Sales Tax Act, the Assessing Officer, after considering the material evidence on record, passed an assessment order dated 27.02.2004 imposing tax @ 2% on fax machines and photocopier machines holding them as electronic goods. Subsequently, it transpires that the Additional Commissioner issued an order dated 31.12.2007 granting permission to the Assessing Officer to initiate reassessment proceeding under Section 21(2) of the U.P. Trade Tax Act (hereinafter referred to as the Act) on the ground that photocopier machines and fax machines are liable to be taxed as an unclassified item @ 10%.
(3.) BASED on this permission, the Deputy Commissioner, respondent no. 4 issued a notice under Section 21 of the Act. The petitioner, being aggrieved by the issuance of the notice and the order granting permission to the assessing authority to initiate re -assessment proceeding, filed writ petition no. 784 of 2008, M/s Godrej and Boyce Manufacturing Company Limited Vs. State of U.P. and others, which was allowed and the order of the Additional Commissioner sanctioning permission dated 31.12.2007 as well as the notice dated 03.03.2008 was quashed. The writ Court while allowing the writ petition by its order dated 29.03.2008 directed the Additional Commissioner to reconsider the matter. For facility, the order dated 29.03.2008 is extracted hereunder: "After hearing learned counsel for the petitioner and the learned Standing Counsel and also considering the fact that the impugned order dated 31.12.2007 passed by the Additional Commissioner under Section 21(2) proviso is a non -speaking order which does not take into account the fact that earlier in the order passed under Section 22 exactly the same issue was considered and decided in favour of the petitioner and has also not considered the defence of the petitioner and the decision of this Court in the case of Canon India Private Limited Vs. State of U.P. and others,2003 UPTC 10, we allow this writ petition. The impugned order dated 31.12.2007 (Annexure -7 to this writ petition) and all consequential proceedings pursuant to the impugned order are set aside. The matter will be reconsidered by the Additional Commissioner." Based on the aforesaid observation of the writ Court, the Additional Commissioner issued a fresh notice dated 16.09.2008 intimating the petitioner to show cause as to why re -assessment proceeding should not be initiated. The petitioner submitted a reply contending that the tax liability is only 2% and not 10% and that the entire proceedings was barred by limitation inasmuch as the period of six years for reopening the assessment proceedings had lapsed. Inspite of the aforesaid objection being taken, the Additional Commissioner, by its order dated 21.10.2008, granted permission to the Assessing Officer to initiate reassessment proceedings under Section 21 of the Act. Based on the said order, the Assessing Officer issued a notice under Section 21 of the Act. The petitioner, being aggrieved by the aforesaid two orders, has filed the present writ petition for its quashing.;