VISHNU CHANDRA GUPTA , J. - (1.) CHALLENGE in this writ petition is the proceedings initiated for the Assessment Year 1990 -91 under Section 21 (2) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act') by issuing a notice (Annexure -4 to the writ petition) dated 19.03.2002.
(2.) THE brief facts necessary for deciding this writ petition are that the petitioner -M/s Commercial Motor Limited is a 'registered dealer' under the Act. During assessment year 1990 -91, the petitioner was authorized dealer of scooters manufactured by M/s Bajaj Auto Ltd. and has sold the same during the said assessment year to the State employees of the State Government through U.P. Government Employees Welfare Corporation as well as Canteen of the Stores Department amounting Rs.5,23,93,337.57. During the course of assessment, the petitioner submitted the certificates, which was required to be issued for claiming exemption in terms of notification No.7037 dated 31.01.1985. The Assessing Officer (in short 'the AO') on the basis of these 270 certificates granted exemption on the sale of scooters to the U.P. Government Employees and Canteen Stores Department for an amount of Rs.5,23,93,337.57 vide its assessment order (Annexure -1 to the writ petition) dated 25.03.1995. The AO accepted the book version of the petitioner while making the assessment on 25.03.1995. Thereafter a notice dated 13.03.2002 was received by the petitioner which was issued from the office of opposite party no.2, Additional Commissioner fixing 18.03.2002 to show cause as to why the proceedings under Section 21(2) of the Act may not be initiated against him for the sale of two wheeler scooters to the government employees through U.P. Government Employees Welfare Corporation vide 270 forms submitted by the petitioner has a total of only Rs.4,26,94,276.59 which shows that the exemption has been granted in excess of Rs.97,02,050.65, which ought to be taxed. Therefore, the aforesaid amount of Rs.97,02,050.65 is liable to be taxed. The petitioner filed its reply (Annexure -3 to the writ petition) dated 18.03.2002 wherein he has taken two grounds against the said notice. Firstly, that the proceedings under Section 21(2) of the Act cannot be initiated against him as the same has become barred by time after lapse of six years from the date of end of assessment year i.e. after 31.03.1997 in the light of proviso to sub -section (2) of Section 21 of the Act, which reads as under: "Provided that if the Commissioner, on his own or on the basis of reasons recorded by the assessing authority, is satisfied that it is just and expedient so to do, authorizes the assessing authority in that behalf, such assessment or re -assessment may be made after the expiration of the period aforesaid, but not after the expiration of six years from the end of such year or March 31, 2002 which ever is later, notwithstanding that such assessment or re -assessment may involve a change of opinion." It was further stated in the reply that so far as, the words "or 31st March 2002 which ever is later" means upto 31.03.2002, but it shall not enhanced the limitation beyond six years and, therefore, the notice issued is beyond limitation and without jurisdiction.
(3.) AND Secondly, the books of account were examined in original during assessment proceedings by the AO as is evident from the assessment order of year 1990 -91 (Annexure -1 to the writ petition) and therefore, it is evident that on the basis of material already considered by AO while making the original assessment the notice has been issued for reopening the assessment already completed which does not fall within the ambit of section 21(1) of the Act.;