- (1.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s Ashoka Food & Dehydred Sansthan, seeks the following reliefs: (i) issue a writ, order or direction in the nature of certiorari for quashing the impugned notices dated 1.9,2003 issued by the respondent No. 2 (Annexure- 3); (ii) issue another writ, order or direction which this Hon'ble Court may deem just and proper under the circumstances of the case in favour of the petitioner; (iii) award the cost of petition to petitioner.
(2.) Briefly stated, the facts giving rise to the present petition are as follows: According to the petitioner, it is a registered society under the provisions of the Societies Registration Act, 1860. It is also registered with the U.P. Khadi & Gramoudyog Board and under the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act"). It is engaged in the business of sale of foodgrains, pulses, masala, edible spices etc. For the assessment years 1997-98 to 2000-01, the Assessing Authority had granted exemption to the petitioner on sales made by it to the extent of Rs. 50,00,000/-. Subsequently, the Deputy Commissioner (Assessment) 7, Trade Tax, Kanpur, respondent No. 2, who had now become the Assessing Authority of the petitioner, issued notices dated 1.9.2003 in respect of the aforementioned assessment years, calling upon the petitioner to show cause as to why re-assessment proceedings under Section 21 of the Act be not initiated as in terms of the notification dated 27.2.1997, exemption on a turnover of Rs. 50,00,000/- had been granted for processing, packing and marketing of goods mentioned at serial No. 38 of the said notification whereas the petitioner is doing the work of manufacturing. The notices dated 1.9.2003 are under challenge in the present writ petition on the ground that the Assessing Authority had accepted the books of account and the disclosed turnover and had granted exemption on a turnover of Rs. 50,00,000/- after clue examination of the relevant records and the proceedings under Section 21 of the Act are clearly on a change of opinion. Further, mixing of various Masala powder does not form any new condiment and, therefore, the view taken by the respondent No. 2 in issuing the notices is contrary to law. The petitioner is not engaged in manufacturing of spices but is engaged only in processing and the product obtained as a result of mixing of various spices remained spices/condiment and no new commodity has come into existence.
(3.) In the counter affidavit filed by Poonam Gupta, Deputy Commissioner (Assessment) 7, Trade Tax, Kanpur, respondent No. 2, it has been stated that only the existence of belief for reopening the assessment under Section 21 of the Act can be challenged and not its sufficiency. From a reading of the notices in question, it clearly establishes that the reasons for belief existed and, therefore, the proceedings are valid in the eyes of law. It has further been stated that the activities carried on by the petitioner is not simply processing of spices but results into manufacture and, therefore, no exemption is available under the notification dates 27.2.1997. The proceeding have been justified on the ground that reasons to belief has been formed on relevant material and is in accordance with law.;