Prince Glass Works and Mpany Ltd. vs State of U.P. and Others

Prakash Krishna and Abhinava Upadhya, JJ.—The petitioner, a registered Firm under the U.P. Trade Tax Act, is carrying on the business of manufacturing of glass bangles, handmade glass phials and other glass items.

Its assessment for the assessment year 2001-2002 was completed by the Assessing Authority by the order dated 12th of March, 2004. Thereafter, reassessment proceeding u/s 21 of the said Act has been sought to be initiated. Since period of limitation had expired, a proposal was submitted by the Assessing Authority to the Additional Commissioner, Commercial Tax, Sector - II, Ferozabad for grant of permission as required u/s 21 (2) of the Act. A show cause notice was issued to the petitioner, but the petitioner did not file any reply. Consequently, by the impugned order dated 24.1.2009, the Additional Commissioner (Grade-I), Commercial Tax, Agra Zone, Agra granted the permission to the Assessing Authority to reopen the assessment of the petitioner for the relevant Assessment Year. Challenging the said order, the present writ petition has been filed.

A counter affidavit has been filed justifying the stand taken by the department. It has been further stated that the account books of the petitioner have been rejected for the Assessment Year in question and as such initiation of the proceeding u/s 21 (2) of the Act is reasonable.

A supplementary affidavit was filed by by the petitioner annexing a copy of the order dated 9.6.2008 passed by the Additional Commissioner ( Grade-I), Commercial Tax, Agra Zone, Agra for the Assessment Year 2002-2003 (Central) whereby the authority concerned has refused to grant the permission to reopen the assessment for the Assessment Year 2002-2003.

The sole contention raised by the learned Counsel for the petitioner is that on the same basis, the same authority by the subsequent order dated 9.6.2008 refused to grant the permission to reopen the assessment for the Assessment Year 2002-2003. He submits that since the facts of the two assessment years are identical, the impugned order should be set aside.

Elaborating the argument, he submits that on the facts of the present case, there is no material in possession of the department to form a belief that turnover of the petitioner has escaped the assessment.

Opportunity was given to the learned standing counsel to file a reply to the supplementary affidavit, but till date no reply has been filed. The learned standing counsel, on the other hand, supports the impugned action of the department.

Considered the respective submissions of the learned Counsel for the parties and perused the record. The only basis on which the permission has been granted is that in the relevant Assessment Year i.e. 2001-2002, the petitioner has shown excess gas consumption in terms of the production of glass bangles etc. while in the subsequent year i.e. 2002-2003, a lesser consumption of gas was shown. The case of petitioner is that the facts of all assessment years 2001-2002 and 2002-2003 were identical and inter-dependent. If the Additional Commissioner has not granted the permission for the assessment year 2002-2003, he should not have granted the permission for the assessment year 2001-2002.

Be that as it may, it is not possible for this Court to record any finding in this regard. Obviously, while passing the impugned order dated 24.1.2008, he had no advantage of the order dated 9.6.2008 which was passed subsequently. He also noticed that although an opportunity was afforded to the petitioner, but the petitioner could not appear before the authority concerned to place its case.

Taking into consideration the entire facts and circumstances of the case, it is reasonable to afford one more opportunity to the petitioner.

In view of the above discussion, the impugned order dated 24.1.2008 is hereby set aside and a fresh opportunity of hearing is afforded to the petitioner. The petitioner is directed to appear before the authority concerned on 23rd of November, 2009 along with certified copy of the judgment. Fresh notice need not be issued to the petitioner. The authority concerned shall rehear and redecide the matter after giving an opportunity of hearing to the petitioner. It goes without saying that he will also take into account the effect of his subsequent order dated 9.6.2008 passed for the subsequent assessment year.

By way of clarification it is added that plea of limitation shall not be available to the petitioner as we are granting a fresh opportunity to him by way of concession.

With the aforesaid directions, the writ petition succeeds and is allowed in part. No order as to costs.