- (1.) We have heard Sri Suyash Agrawal, learned counsel for the petitioner and Sri C.B. Tripathi, learned Standing Counsel for the State. The present dispute relates to reassessment proceeding for the assessment year 2005-06. The facts leading to the filing of the writ petition is, that the petitioner is a proprietorship firm carrying on the business of purchase and sale of paper for the Assessment Year 2005-06. The books of account of the petitioner was assessed under the U.P. Trade Tax Act as well as under the U.P. Entry Tax Act. The petitioner imported paper under Form-38. The assessing officer accepted the imported paper under the Entry Tax Act as "paper" and charged entry tax @ 5%. The Assessing Officer under the U.P. Trade Tax Act also accepted the petitioner's contention that he had imported paper and accordingly charged tax @ 5% and indicated in the assessment order that in view of the notification, the petitioner was entitled for a rebate on the paper so imported by him.
(2.) Subsequently, a notice under Section 21(2) of the U.P. Trade Tax Act was issued on 21st July, 2011 holding that the Assessing Officer has reasons to believe that the "tissue paper" purchased by the petitioner was not a paper in view of the decision of the Karnataka High Court in the case of M/s. Super Market v. State of Karnataka and, therefore, "tissue paper" should be taxed as an unclassified item @ 10% instead of 5%. The petitioner filed his objections which was duly considered and rejected. The Additional Commissioner after considering the matter, passed the impugned order granting permission to the Assessing Officer to reopen the assessment proceeding based on which reassessment proceedings was initiated against which the present writ petition has been filed.
(3.) The learned counsel for the petitioner submits that the judgment of the Karnataka High Court is not applicable in the instant case inasmuch as the entry of "paper" and "tissue paper" is totally different and distinct under the Karnataka Sales Tax Act from the entries given under the U.P. Trade Tax Act. It was contended that the foundational requirement for reopening the assessment proceeding was lacking and was based on the judgment of Karnataka High Court which was not applicable. It was contended that it was a clear case of change of opinion which could not be done as per the settled law propounded by this Court as well as by the Supreme Court of India.;