- (1.) A. P. MISRA, J. In view of the exchange of affidavits and in accordance with the Rules of the court the present petition is being disposed of finally at the admission stage.
(2.) THE petitioner seeks for quashing of the notice dated August 17, 1994 and August 18, 1994 (annexures 6 and 7 to the writ petition) under section 21 of the U. P. Trade Tax Act for the assessment years 1988-89 and 1989-90. The petitioner is carrying on the business of purchase and sale of chemicals. M/s. Somaiya Organics (India) Limited, Barabanki, is the manufacturer of industrial alcohols and organic chemicals. The said firm appointed the petitioner as his stockist/agent for its various sales in the course of inter-State sales. According to the case of the petitioner, it received orders from various ex-U. P. dealers for the purchase of chemicals and the petitioner in turn has placed the orders in respect of such chemicals with Somaiya Organics (India) Ltd. Accordingly said goods sent outside U. P. to the places mentioned in the order sent to the petitioner. In all the orders the petitioner had placed on Somaiya Barabanki, the petitioner had specifically mentioned the name and addresses of its ex-U. P. purchasers. Further since these chemicals are excisable commodities, hence in the excise gate pass the name of the consignor is mentioned as Somaiya Organics (India) Ltd. , Barabanki, and in the column of the consignee the name and address of the ex-U. P. principle is mentioned. Since the orders were placed by the petitioner to M/s. Somaiya Organics, Barabanki, hence the bill was raised by the said firm on the petitioner, on which inter-State sales tax at 4 per cent charged against C forms. Such transaction were always treated as inter-State sales in the assessment of M/s. Somaiya Barabanki, up to the assessment year 1985-86. The assessment were completed for the assessment years 1986-87, 1987-88, 1988-89 and 1989-90 in which sales made by the petitioner to the ex-U. P. dealers by transfer of documents of title were treated to be sale under section 3 (b) read with section 6 (2) of the Central Sales Tax Act. Assessment years 1988-89 and 1989-90 is relevant for the purposes of this case. Assessments were made against the said firm for the said transaction under the U. P. Sales Tax Act, against which the said firm filed the writ petition. On the said basis the impugned notices were issued under section 21 of the U. P. Trade Tax Act to the petitioner for the assessment years 1988-89 and 1989-90 as aforesaid.
(3.) THE only ground of challenge to the impugned notice is that it is a case of change of opinion, hence the notice is illegal and is liable to be quashed. THE said notice was issued even against the petitioner on the basis of survey dated October 25, 1990 which admittedly was much before passing of the original assessment orders for the aforesaid two assessment years in question. THE contention of the petitioner is that the transaction in question by transfer of documents of title during the movements of goods from Barabanki to outside U. P. has already been considered in detail in the original assessment orders, hence the notice is bad in law. On behalf of the State learned Standing Counsel has urged that the notice was issued on the basis of survey hence it cannot be said that the said notice is without any material and if something is found which was not in the original assessment order would constitute to be a ground for issuance of notice under section 21 of the Act as it would amount to escape assessment. However, when it was put to the learned Standing Counsel as what was the material in the survey or any other material on record on the basis of which notice under section 21 was issued, he fairly was not able to point any. On the other hand it is not in dispute that this survey of October 25, 1990 was in existence when original assessment orders were passed. The next contention of the learned Standing Counsel was that since in the survey in question modus operandi of the previous years were disclosed to be the same as it was in the years in question, hence on that basis the said notice was issued. However, the modus operandi has been considered in the original assessment for two relevant years in question, according to the petitioner. Nothing new has been stated even in the impugned notice for less any material found to constitute a ground for initiation of the proceedings under section 21 of the Act. It is true on the basis of any survey subsequently made, if some material is disclosed for the early assessment order in question that may constitute a ground for initiating the proceeding as escaped assessment but for that reason also the Revenue has to disclose the material found during the said survey/seizure. If material relied by the State in initiation of proceedings under section 21 is the same which existed during the original assessment year in question and considered the inference to reassess an assessee would constitute to be a case of change of opinion. The learned counsel for the petitioner thoroughly taken us to the original assessment orders and referred to the notice to show that what is being relied is nothing which is not considered earlier except the inference of the officer concerned on the basis of same material and in our considerate opinion it would constitute to be a case of change of opinion and would not come within the jurisdiction of the notice under section 21 of the Act. The law on the subject is well-settled. In Palco Lining Company v. Sales Tax Officer, Sector IV [1983] 54 STC 255 (All); 1983 UPTC 1116, it was held that irrespective of the amplitude of the language used in section 21 of the Act, reassessment proceedings are not permissible on mere change of opinion by the taxing authority at a subsequent stage. The petitioners are right in their submission that issuance of a notice under section 21 of the Act in the present cases was without authority of law.;