# Gopal Das v. The Assessing Officer, Trade Tax, Kanpur and others - **Citation:** (2005) 2 ILRA 695 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2005-07-11 - **Case number:** Civil Misc. Writ Petition No. 507 of 2000 - **Bench:** R.K. Agrawal, Rajes Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-das-v-the-assessing-officer-trade-tax-kanpur-and-others-40524 - **Pages:** 14 ## Headnote U.P. Trade Tax Act-Section 21 Reassessment- Petitioner doing business of manufacture and sales of agricultural implements and other house hold goods known as kharal. Assessing authority held that petitioner not manufactured agricultural implements and had sold imported iron steel and iron-after 4 years, by order dt. 20.04.04 issued show cause notice on the basis of same material of original assessment-no fresh material by which the believe could be formed impugned. Notice including entire proceeding quashed. Held: Para 12 and 14 For the reasons stated above, we are of a considered opinion that the proceeding under Section 21 was initiated on the basis of same material, which were in existence at the time of original assessment proceeding only on account of change of opinion. There was no fresh INDIAN LAW REPORTS ALLAHABAD SERIES [2005 696 material with the Assessing Authority at the time of issue of notice, on the basis of which, a believe could be formed about the escaped assessment, which is a condition precedent for initiation of proceeding as referred hereinablve. The survey dated 14.9.1995 had been considered in detail by the Assessing Authority in the assessment order and by the Appellate Authority and with regard to the self manufactured Kharal, there was no material on the basis of which, a believe could be formed by the Assessing Authority that it was liable to tax as a Mill Store @ 10%. In the result, writ petition is allowed. The notice under Section 21 of the Act (Annexure-5 to the writ petition) and the entire proceeding under Section 21 of the Act for the assessment year 1995-96 are quashed. Case law discussed: UPTC 2000 - 210 UPTC 2004 - 347 2002- UPTC 140 1994 UPTC-1041 AIR 1980 SC-1552 2003 UPTC-1269 41 ITR-191 2002 UPTC-210 2003 UPTC-140 ## Text _Characters 0–39,814 of 54,222. This is a partial read: ask again with offset=39814 for what follows._ 2 All] Gopal Das V. The Assessing Officer, Trade Tax, Kanpur and others 695 candidate as the same could be filled only by a wait listed candidate of schedule caste if available and requisition could have been made by the State Government within one year life time of the waiting list and not from any other wait listed candidate of general category or other categories. But there is nothing on record to show that State Government has sent any such requisition within one year from the date of first and last recommendation made by the Commission which in fact was made on 20.11.1997. Contrary to it the requisition of State Government was sent to the Commission on 28.7.2001 much after expiry of life time of the waiting list after lapse of about 4 years. Therefore, in our considered opinion the petitioner is not entitled for appointment against any of such vacancies referred to herein before. 26. Thus in view of foregoining discussion we are of considered opinion that the impugned action of Commission in not recommending the name of petitioner who is wait listed candidate of general category against said vacancies arose on account of resignation of two candidates of general category within one year of their joining during subsistence of waiting list and on account of non joining of one candidate of schedule caste in given facts and circumstances of the case stated herein before is fully justified and according to law and does not call for any interference in exercise of jurisdiction under Article 226 of the Constitution of India. 27. For the aforesaid reasons the writ petition fails and accordingly dismissed. 28. There shall be no order as to costs. Petition Dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.07.2005 BEFORE THE HON'BLE R.K. AGRAWAL, J. THE HON'BLE RAJES KUMAR, J. Civil Misc. Writ Petition No. 507 of 2000 (Tax) Gopal Das ...Petitioner Versus The Assessing Officer,Trade Tax, Kanpur ...Respondent Counsel for the Petitioner: Sri M. Manglik Counsel for the Respondent: Sri M.R. Jaiswal S.C. U.P. Trade Tax Act-Section 21 Reassessment- Petitioner doing business of manufacture and sales of agricultural implements and other house hold goods known as kharal. Assessing authority held that petitioner not manufactured agricultural implements and had sold imported iron steel and iron-after 4 years, by order dt. 20.04.04 issued show cause notice on the basis of same material of original assessment-no fresh material by which the believe could be formed impugned. Notice including entire proceeding quashed. Held: Para 12 and 14 For the reasons stated above, we are of a considered opinion that the proceeding under Section 21 was initiated on the basis of same material, which were in existence at the time of original assessment proceeding only on account of change of opinion. There was no fresh INDIAN LAW REPORTS ALLAHABAD SERIES [2005 696 material with the Assessing Authority at the time of issue of notice, on the basis of which, a believe could be formed about the escaped assessment, which is a condition precedent for initiation of proceeding as referred hereinablve. The survey dated 14.9.1995 had been considered in detail by the Assessing Authority in the assessment order and by the Appellate Authority and with regard to the self manufactured Kharal, there was no material on the basis of which, a believe could be formed by the Assessing Authority that it was liable to tax as a Mill Store @ 10%. In the result, writ petition is allowed. The notice under Section 21 of the Act (Annexure-5 to the writ petition) and the entire proceeding under Section 21 of the Act for the assessment year 1995-96 are quashed. Case law discussed: UPTC 2000 - 210 UPTC 2004 - 347 2002- UPTC 140 1994 UPTC-1041 AIR 1980 SC-1552 2003 UPTC-1269 41 ITR-191 2002 UPTC-210 2003 UPTC-140 (Delivered by Hon'ble Rajes Kumar, J.) 1. The present writ petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing the notice under Section 21 of U.P. Trade Tax Act (hereinafter referred to as Act) dated 28.4.2000 for the first year 1995-96 (Annexure - 5) to the writ petition. 2. The brief facts of the case are as follows: - The petitioner was a registered dealer under Section 8 - A of the Act was engaged in the business of manufacture and sales of agricultural implements and house hold goods commonly known as Kharal (Imamdasta). During the course of assessment proceedings, petitioner disclosed total sales at Rs.1,30,25,142.25p and taxable sales at Rs.4,12218.90 within the State of U.P. and had not disclosed any interstate sales. The total sale comprises sales of manufactured agricultural implements at Rs. 1,14,78,623.85p and U.P. purchased agricultural implements at Rs. 734691.00p sales of house hold goods ar Rs.1,49,971.90, sales of Iron Scrap at Rs. 2,62,309/-. Tax was admitted on the sales of house hold and sales of Iron Scrap. An assessment order was passed for the assessment year 1995-96 both under the U.P. Trade Tax Act as well as under the Central sales Tax Act by the Trade Tax Officer, Sector 13, Kanpur vide order dated 27.3.1997. While passing assessment order, Assessing Authority had considered the survey dated 14.9.1995 made by the S.T.O. (S.I.B.) and on the basis of the said survey and other material, books of account had been rejected and the turnover of the house hold Kharal had been estimated at Rs. 3 Lacs and the turnover of Iron Steel (Scrap) had been estimated at 6 Lacs. Assessing Authority, however, granted exemption on the turnover of manufactured agricultural implements and locally purchased agricultural implements for Rs.1,26,12,861.35p. Against the assessment order, petitioner filed appeal before the Deputy Commissioner (Appeal), Trade Tax, Kanpur. Appeal was allowed and the books of accounts and the disclosed turnover was accepted vide order dated 13.4.1995. 3. After passing assessment order, Assessing Authority initiated proceeding under Section 21 of the Act on the basis 2 All] Gopal Das V. The Assessing Officer, Trade Tax, Kanpur and others 697 of information received from S.T.O. (SIB). Assessing Authority passed an order under Section 21 of the Act on 18.3.1988, on the basis of information which was alleged to have been sent on the basis of survey dated 26.2.1997, Assessing Authority inferred that the petitioner had not manufactured agricultural implements and held that the petitioner had not manufactured agricultural implements and had sold imported Iron Steel and Iron Steel purchased against Form 3-B and accoudingly estimated the turnover at Rs. 1,30,000,00/- of the imported Iron Steel which was alleged to have not been used in the manufacturing of agricultural implements. Against the said order, petitioner filed appeal before the Deputy Commissioner (Appeal) which was allowed vide order dated 30.11.1998 and the order passed under Section 21 of the Act had been quashed and the petitioner was declared non taxable. Respondent again issued a notice under Section 21 of the Act. In the Show - Cause - Notice dated 20.4.2004, following reasons have been given - 1- vk; ds o"kZ 95&96 ds ewy dj&fu/kkZj.k vkns'k fu;e 41&8 lifBr /kkjk 30 fnukad 27&3&97 dks ikfjr fd;k x;k Fkk ftlesa vki }kjk la01]14]78]823&85 dh LofufeZr d`f"k;U= dh fcdzh ?kksf"kr dh x;h Fkh ftl ij vfu;fer :i ls dj eqfDr iznku dj nh x;h gS] tcfd O;kikj dj vf/kdkjh fc0vuq0'kk0 izFke bdkbZ dkuiqj ls losZ{k.k fnukad 14&9&95 ds vuqlkj d`f"k;U=ksa ds fuekZ.k dk dk;Z gksrk ugha ik;k x;k FkkA vr% vki dkj.k crk;sa fd D;ksa u vk;kfrr vk;ju ,.M LVhy dh fcuk dksbZ fuekZ.k ds mlh :i esa fcdzh ekurs gq, fu;ekuqlkj 4 izfr'kr dh nj ls dj vkjksfir dj fn;k tk;sA 2- vki }kjk LofufeZr [kjy bekenLrk dh fcdzh 3]00]000@& dj ;ksX; fu/kkZfjr dh x;h Fkh fdUrq bl ij gkml gksYM xqMl dh fcdzh dh Hkkafr =qfVo'k 7-5 izfr'kr dh nj ls dj vkjksfir gks x;k gS tcfd fu;ekuqlkj bl ij fey LVksj vkSj yksgs ls cuh oLrq,a ftlds vUrxZr yksgs dk bLikr ds rkj ugha vkrs gSa] fdUrq blds vUrZxr yksgs ;k bLikr dk ,slk eky ls tks bl vuqlwph dh fdlh vU/ken ds vUnj u vkrk gks dh Js.kh esa fu;ekuqlkj bl 10 izfr'kr dh nj ls ljpktZ lfgr dj vkjksfir gksuk pkfg,A vr% dkj.k crk;sa fd D;ksa u mDr [kjy dh fcdzh ij 10 izfr'kr dh nj ls fu;ekuqlkj dj vkjksfir dj fn;k tk;A 4. Being aggrieved by the notice under Section 21 of the Act on the aforesaid ground stated in the notice, petitioner filed the present writ petition. Counter and Rejoinder Affidavits have been exchanged. 5. Heard Sri M.Manglik, learned Counsel for the petitioner and Sri M.R. Jaiswal, learned Standing Counsel appearing on behalf of the respondent. Learned Counsel for the petitioner submitted that the survey dated 14.9.1995 had been considered by the Assessing Authority in detail while passing the assessment order dated 27.3.1997. He submitted that on consideration of the entire survey report, books of account had been rejected, but the turnover of self manufactured agricultural implements and the turnover of purchased agricultural implements had been exempted. In the Appellate order dated 13.4.1998 also the survey dated 14.9.1995 had been considered and the petitioner's books of account and the disclosed turnover have been accepted. He further submitted that in the order dated 18.3.1996 passed under Section 21 of the Act, Assessing Authority levied tax on the turnover of Iron Steel which is alleged to have not been used in the manufacturing of agricultural implements on the ground that the petitioner had not manufactured agricultural implements. The Appellate Aurthority whicle allowing the appeal vide order dated 30.11.1998 again considered the survey dated 14.9.1995 INDIAN LAW REPORTS ALLAHABAD SERIES [2005 698 and accepted the claim of the petitioner about the manufacturing of the agricultural implements and accordingly, order of the Assessing Authority passed under Section 21 of the Act had been quashed. He submitted that in the notice same survey dated 14.9.1995 had been made basis which has been considered in detail in the assessment order under section 7 of the Act, appellate order under section 21 of the Act. Thus notice under Section 21 of the Act is wholly unwarranted. He submitted that the allegations of the Assessing Authority that the self manufactured Kharal (Imamdasta)o had been taxed as a house hold goods @ 7.5% while it should be taxed @ 10% as a Mill Store is also unwarranted, inasmuch as, it is only on account of change of opinion and there was no material on the basis of which, such view could be taken. He submitted that the notice under Section 21 of the Act had been issued on the basis of the same material which was available at the time of assessment proceedings and there was no fresh material on the basis of which a believed could be formed about the escaped assessment. He submitted that the notice was issued merely n the basis of change of opinion. Which is wholly unwarranted. In support of his contention, he relied upon the Division Bench decision of this Court in the case of Royal Trading Company Vs. reported in UPTC 2000 page 210 and the Division Bench decision in the case of M/S Ratan Industired Pvt. Ltd. Vs. Addl. Commissioner of Trade Tax reported in 2004UPTC page 347. Learned Standing Counsel submitted that the initiation of proceeding under Section 21 of the Act was wholly justified. He submitted that though, the survey dated 14.9.1995 was considered at the time of assessment proceedings, but it was considered fro rejecting the books of account and it has not been considered othat at the time of survey, manufacturing of agricultural implements was not found leading to the inference that no manufacturing of agricultural implement was carried on at all. He submitted that the self-manufactured Kharal is liable to tax as a Mill Store, while it had been wrongly assessed @ 7.5% as a house hold goods. In these circumstances, he submitted that the initiation of proceedings under Section 21 of the Act was justified. In Support of his contention, he relied upon the Division Bench decision of this Court in the case of reported in 2002 UPTC page 210 and 2003 UPTC page 140. 6. Having heard learned Counsel for the parties. We are of the considered opinion that the initiation of proceedings under Section 21 of the Act is wholly illegal, without any basis and unwarranted. Section 21 (1) and (2) reads as follows: - Section 21 (1) and (2) "(1) If the Assessing Authority has reason to believe that the whole or any part of the turnover of a dealer, from any assessment year or part thereof, had escaped assessment to tax or has been under assessed or has been assessed to tax at rate lower than that at which it is assessable under this Act, or any deductions or exemptions has been wrongly allowed in respect thereof, the Assessing Authority, after issuing notice to the dealer and making such inquiry as it may consider necessary assess or reassess the dealer to tax according to law." 2 All] Gopal Das V. The Assessing Officer, Trade Tax, Kanpur and others 699 "(2) Except as otherwise, provided in this Section, no order of Assessment or re-assessment under any provision of this Act for any assessment year shall be made after the expiration of two years from the end of such year or March, 31, 1998 whichever is later : Provided that if the Commissioner on his own or on the basis of reasons record by the Assessing Authority is satisfied that 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 eight years from the end of such year notwithstanding that such assessment or re-assessment may involve a change of opinion." 7. It appears that in the present case, limitation of four years have been expired, therefore, proceedings under section 21 of the Act had been initiated after obtaining approval from Additional Commissioner under the proviso of Section 21 (2). 8. In this case of Royal Trading Company Vs. CST, petitioner was a dealer of leather sheets and leather boards. Original assessment was completed assessing the turnover of leather sheets @ 4% applicable to the leather as a declared commodity under Section 14 of the Central Sales Tax Act. A notice under Section 21 was issued to reassess the turnover at a higher rate on the ground that the leather sheets sold by the petitioner was not leather as defined in Section 14 of the Central Sales Tax Act. Validity of notice was challenged in the writ petition. This Court held as follows: "Therefore, action under Section 21 of the Act cannot be taken on the whims of the Assessing Officer by resorting to conjecture of imagination. He has to have before him the facts which are germane to the issue and on the basis of which, a rational man can have reason to believe that the whole or any part of the turnover has escaped assessment or has been under assessed. In Income Tax Officer Vs. Madnani Engineering Works Ltd. (1979) 118 I.T.R. 1: 1979 U.P.T.C. 1107 (SC), the Hon'ble Supreme Court which dealing with some what similar provision under Section 147 of the Income Tax Act, 1961 held that the existence of reason to believe on the part of the I.T.O. was a justifiable issue and it was for the Court to be satisfied whether in fact the I.T.O. had reason to believe that income had escaped assessment. In Joti Parshad Vs. State of Haryana J.T. 1992 (6) S.C. 94 the Hon'ble Supreme Court while dealing with the meaning of expression reason to believe in Section 26 of the Indian Penalo Code helod that the reason to believe is not the same as suspicion and a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. In Income Tax Officer Vs. Lakhani Mewal Dut, (1976) 103 I.T.R. 437, 1976 U.P.T.C. 809 (SC), the Hon'ble Supreme Court held that the reasons for the formation of the belief contemplated by Section 147 (a) of the Income Tax Act, 1961, for the reopening of an assessment must have a rational connection or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of INDIAN LAW REPORTS ALLAHABAD SERIES [2005 700 his belief. The Hon'ble Supreme Court further observed that though it is true that the Court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income Tax Officer on the point as to whether action should be initiated for reopening the assessment yet at the same time we have to bear in mind that it is not any and every material, however, vague and indefinite or distant, remote and farfetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. This view was reiterated by the Hon'ble Supreme Court while dealing with the provisions of Section 21 of the U.P. Trade Tax Act in Commissioner of Sales Tax Vs. Bhagwan Industries (P) Ltd., (1973) 31 STC 293 in which it was held that reasonable rounds necessarily postulate that they must be germane to the formation of the belief regarding escaped assessment. If the grounds are of an extraneous character, the same would not warrant initiation of proceedings under this section. If however, the grounds are relevant and have a nexus with the formation of belief regarding escaped assessment, the Assessing Authority would be clothed with jurisdiction to take action under this section. "This aforesaid observation of the Hon'ble Supreme Court also negative the stand taken by the learned Standing Counsel. That it lays down is that the Assessing Officer is bound to do his home work well and find out cogent reason for arriving at a tentative conclusion based on a reasonable belief that income has escaped assessment. In the present case, however, the Assessing Officer has patently rushed into action under Section 21 without undertaking any research or investigation so as to bring on record material which may lead to a reasonable belief that the turnover has escaped assessment or has been under assessed. Reliance was also placed by the learned Standing Counsel on Commissioner of Sales Tax. M/S Sonpal Sanjay Kumar Vs. Sales Tax Officer,o 1997 U.P.T.C. 73. There is nothing in those cases to support the standing set up by the learned Standing Counsel." "It was Contended that in the assessment orders initially framed, the Assessing Officer blindly accepted that the leather sheets which the petitioner sold were leather and that, therefore, action under Section 21 was justified. This contention has no force. May be in the original assessment the Assessing Officer did not investigate into fact but that would not justify a reopening of the assessment in a mechanical manner without bringing on record material that could lead a rational person to believe that what was actually sold was not leather. As pointed out above, the Assessing Officer has not collected any such material and is merely relying on a judgment of Punjab and Haryana High Court without collecting material find out if the commodity sold by the petitioner was of a similar nature. 9. In the case of Ratan Industries Pvt. Ltd. Vs. Additional Commissioner of Trade Tax reported in 2004 UPTC page 347, petitioner was carrying on the business of manufacture and sales of C.I. Casting, M.S. Castings, Parts and Accessories and animal driven vehicle. In the original assessment proceedings, Show-Cause Notice was issued on the basis of report of Spl. Investigating Branch, Trade Tax Department that the animal driven Vehicle, Hubs, in respect of which, exemption claimed was of a size 2 All] Gopal Das V. The Assessing Officer, Trade Tax, Kanpur and others 701 of 340mm and 160 mm and are considered and hence, could not be treated as Hubs as animal driven Vehicle. Petitioner filed detailed reply, which was accepted, and the turnover of animal driven Vehicle Hubs was exempted from the tax. A proceeding under Section 21 of the Act was initiated on the ground that the Central Excise Department had found a diameter of Hubs and all were 920 mm while habitual Hubs of a diameter of 220 mm has been inferred that the Hubs sold by the petitioner was not animal driven Vehicle. Notice was challenged in Writ Petitioner in this Court. This Court held as follows: "It is a well settled principle of law that the question which has been examined in detail in the original assessment proceedings and thereafter the assessment order has passed, then the said assessment order cannot be reopened under Section 21 of the Act on mere charge of opinion." "A perusal of the original assessment order dated 30th March, 1999 for the Assessment Year 1996-97 clearly shows that in the assessment proceedings, the question of diameter of the hubs manufactured by the petitioner being 340mm (340 mm for one side and 160 mm on the other side) as well as the weight of each hubs being 20 to 21 kg. per piece was very much the subject matter of investigation vide the original assessment order dated 31st March, 1999 (Annexure 1 to the petition)." "However, the Assessing Authority after considering of the Sales Tax Officer (SIB) report, as well as the Circular of the Commissioner, Trade Tax, U.P. Lucknow dated 26th February, 1992 has held that these hubs are normally used in animal driven vehicle and even if it can be used in other vehicles, still it is entitled for exemption under the Notification no. 7038, dated 31st January, 1985, as clarified by the State Government itself." "Thus, the initiation of reassessment proceedings under section 21 on the ground of diameter of hubs being 312 mm to 320 mm on the basis of the report of I.I.T. Kanpur is in our opinion illegal and invalid, as it is based on mere change of opinion, and not on the basis of any fresh and cogent material." In the case of Palco Lining Co. Vs. State of U.P. reported in 1983 UPTC page 1116, the Division Bench of this Court held as follows:- "Section 21 of the U.P. Sales Tax Act enables the Assessing Authority to reassess a dealer to tax if it has reason to believe that the whole or any part if his turnover for any assessment year or part thereof has escaped assessment to tax or has been under assessed or has been assessed at a rate lower than that at which it should have been assessed or where any deduction and exemption has been wrongly allowed in respect thereof. It does not permit reassessment of turnover which, after due consideration, had been found not exigible to tax merely because the Assessing Authority subsequently comes to take a different view of the matter." "A perusal of the order of assessment in these cases would show that the Assessing Authority had, after elaborately considering the evidence before it taken the view that what was being sold by the petitioners was nothing but cloth cut in the shape of collar. It turnover of sale was held exempt from tax Notification No. S%T 4069/X 960(4)/58, dated 25th November,1958 provided for such INDIAN LAW REPORTS ALLAHABAD SERIES [2005 702 exemption for 'cotton fabric of all varieties' subject to some exception." "Irrespective of the amplitude of the language used in Section 21 of the Act reassessment proceedings are not permissible on mere charge 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." In the case of Harbans Lal Malhotra Vs. Asstt. Commissioner of Sales Tax reported in UPTC 1994 page 1041, the stock transfer was accepted by the Assessing Authority in the original assessment proceedings by scrutinizing the transaction. Further given a notice under Section 21 of the Act with a view to levy tax on the stock transfer on the ground that the said stock transfer have been wrongly treated as stock transfer. The Division Bench of this Court held as follows :- "We find in the present case as observed above the original assessment order disclosed the details scrutiny of all the documents of the petitioner including the agreement in question and the very basis of the assessment was on arriving at a conclusion that the documents on record reveal that the transfer of the goods amounts to stock transfer. After recording this finding, the present notice amounts to re-examining the same matter again and make a fresh enquiry in the same matter. Admittedly, nothing has been found by the authorities for the year in question, thus it would only amount to change of opinion. The authority cannot issue any notice on account of change of opinion nor in the absence of any material for the year in question." In the case of Delhi Cloth and General Mills Company Ltd. Vs. State of Rajasthan and another reported in A.I.R. 80 SC page 1552, Apex Court held as follows:- "It does not permit re-assessment of turnover which after due consideration, had been found not exigible to tax merely because, the Assessing Authority subsequently come to take different view in the matter." In the case of Samrat Trading Company, Mirzapur and another Vs. State of U.P. and another reported in 2003 U.P.T.C. page 1269, following the judgment of Constitutional Bench of Hon'ble Supreme Court in the case of Calcutta Discount Company Ltd. Vs. I.T.O. reported in 41 I.T.R. page 191 (SC), and Division Bench decision in the case of Harbansh Lal Malhotra Vs. Asstt. Commissioner of Sales Tax reported in UPTC 1994 page 1041, the proceeding initiated under Section 21 of the Act only on acount of change of opinion was quashed. On the aforesaid legal position, let us examine the facts of the case. In the present case in the original assessment order dated 27.3.1997, the survey dated 14.9.1995 made by the STO (SIB) has been considered in detail which reads as follows:- O;kikjh ds fuekZ.k LFky QSDVz~h dk tkap fnukad 14&9&95 dks O;kikj dj vf/kdkjh fc0 vuq0 'kk0 izFke bdkbZ dkuiqj }kjk dh x;hA tkap ds le; fVu'ksM esa 7 e'khusa ftuesa xzkUMj] [kjhn e'khusa vkfn ikbZ x;h] ftuesa ls nks [kjhn e'khusa pkyw gkyr esa ik;h x;haA [kjy bekenRrk dk fuekZ.k gksrk ik;k x;kA tkap ds le; Hkkjh ek=k esa rS;kj [kjy cukus gsrq jk&eSVsfj;y o lsQfQfu"M [kjy dk LVkd ik;k x;kA mDr ds vfrfjDr LVksj esa tax yxk iqjkuk 2 All] Gopal Das V. The Assessing Officer, Trade Tax, Kanpur and others 703 dM+kgh 150 ikl j[kk ikbZ x;h rFkk 200 ikl d<+kbZ cukus gsrq jk&eSVsfj;y ik;k x;kA tkap ds le; gkml gksYM xqMu@[kjy o d<+kbZ ds LVkd o mlds fuekZ.k gsrq iz;ksx fd;s tkus okys jk&eSVsfj;y o rS;kj d`f"k;U= dk LVkd ugha ik;k x;kA fo0 vuq0 'kk0 vf/kdkjh ds tkap ds le; dksbZ ys[kk fglkc izLrqr ugha fd;s x;s FksA fc0 vuq0 'kk0 vf/kdkjh }kjk izsf"kr izfrosnu esa mfYyf[kr rF;ksa ls lquokbZ ds le; O;kikjh dks voxr djk;k x;k] tks fd O;kikjh ds foijhr gS] ds lEcU/k esa fn;s x;s dkj.k crkvks uksfVl ds izR;qRrj esa O;kikjh us nkf[ky fyf[kr Li"Vhdj.k esa mYys[k fd;k gS fd fnukad 14&9&95 dks O;kikj dj vf/kdkjh fo0 vuq0 'kk0 izFke bdkbZ] dkuiqj ds }kjk tkap ,oa LVkd esa jk&eSVsfj;y ds ids u ik;s tkus ds ckjs esa dguk gS fd bdkbZ esa fnukad 12&8&95 dks 4280 fd0 xzk0 jk&eSVsfj;y 'ks"k Fkk ,oa mlls ysoylZ dk fuekZ.k gqvk FkkA fnukad 14&8&95 dks 1265 fd0 xzk0 dfVax gks VasfMax ds fy, [kjhnh x;h FkhA ysfdu Hkko u feyus ds dkj.k cspk ugha x;k Fkk LVkd esa ;gh Fkk blls lacy ds rkSj ij rlys dk fuekZ.k djk;k x;k FkkA blesa 490 fd0 xzk0 rlyk rS;kj gqvk Fkk vkSj 686 fd0 xzk0 llys ds lfdZy dkVs x;s Fks pw¡fd blds vykok d`f"k;U=ksa ds fuekZ.k ds fy, dksbZ Hkh jk&eSVsfj;y LVkd esa ugha FkkA ftlls fd mRiknu gksrk] dsoy 688 fd0xzk0 v)ZfufeZr lcys ds fuekZ.k ds fy, bdkbZ dks pykuk LokHkkfod ugha Fkk vr% fnukad 14&8&95 ls gh bdkbZ dks cUn djus dk fu.kZ; fd;k x;k fnukad 14&6&95 ls 27&8&95 rd bdkbZ esa dksbZ fuekZ.k dk;Z jk&eSVsfj;y u gksus ds dkj.k ugha fd;k x;k rS;kj rlyk lEiwy ds :i esa O;kikfj;ksa dks fn[kk;k tkrk jgk rkfd lgkHkko feyus ij bl VsafMax okys eky dk gh fuekZ.k djk;k tk;] ysfdu blesa Hkh lQyrk ugha feyk D;ksafd dfVax tax yxh gqbZ ,oa iqjkuk Fkk] ftls ns[kdj O;kikjh u dj nsrk Fkk O;kikjh us ;g Hkh mYys[k fd;k gS fd ,d NksVk e'khu dh t:jr Fkk] ftlls og [kyj dh mRiknu djuk pkgrk Fkk vkSj mlds fy, cjkcj iz;kljr Fkk fd iqjkuk e'khuksa dh [kjhn dh tk; fnukad 16&8&95 dks nks iqjkuk ys;j [kjhn e'khusa [kjhnh x;hA iqu% xzkbUMj] gSej csfYMax e'khu dh [kjhn dj fnukad 28&8&95 ls [kyj dk fuekZ.k dk;Z pkyw dj fn;k] tks fd fnukad 7&9&95 rd fuekZ.k ,oa fcdzh dk;Z tkjh j[kk fnukad 8&9&95 ls 11&9&95 rd yxkrkj fctyh dk ladV cuk jgkA blh chp QSDVah ds eSxusV ij VsyhQksu okyksa us dsfcy dk [qknkbZ 'kq: dj nh] ftlls vkokxeu dk lk/ku fcYdqy gh cUn gks x;kA bl le; Hkkjh cjlkr Hkh gqbZ Fkh vkSj ekxZ fo:) Fkk bu lHkh dks ns[krs gq, QSDVah dh cUnh dh lwpuk foHkkx dks nsus dk QSlyk djds QSDVah ds iw.kZ :i ls dqN fnukas rd cUn j[kus dk fu.kZ; fy;k x;k vkSj foHkkx dks jlhn la[;k&90655 fnukad 13&9&95 ds ek/;e ls lwfpr dj fn;k x;kA fnukad 6&9&95 dks VkVk vk;ju ,.M LVhy da0 dkuiqj ls lhV dfVax [kjhnus okLrs psd ls Hkqxrku fn;k x;k] ftldk eky j[kus dk leL;k cuh gqbZ Fkh odZ 'kki esa ckgj eky j[kus ij Hkhxus dk Mj Fkk ,oa vUnj bruh txg miyC/k ugha Fkh jkLrk [kjkc gksus ds dkj.k xkMh eSuxsV rd igq¡p Hkh ugha ldrh Fkh vr% fnukad 10&9&95 dks ,d xksnke Jherh nsoh ls lkdsr uxj esa fdjk;s ij fy;k x;k] ftldh ckrphr 29&8&95 dks gh iDdh gks x;k Fkk vkSj muds }kjk ,d LVkEi isij dk [kjhn dj nksuksa i{kksa dk 'krsZa fy[kk x;h FkhA bu xksnke dk fdjk;k 18&9&95 ls ykxw fd;k x;k FkkA bl xksnke esa izxfr ,fxzdks ,oa lg;ksxh izfr"Bku tkes fn;k Likr ,.M dk eky j[kus dk fu.kZ; fy;k x;k pw¡fd izxfr bfxzdks ,oa tkesfn;k Likr b.M0 nksuks dk izksijkbVj ,d gh gS vkSj nksuksa QeZ [k.M&13 esa gh Fkh vr% tkeksfn;k bLikr ,.M0 ds ysVj iSM ij xksnke ysus dh lwpuk jlhn la0&156156 fn0 5&10&95 ds ek/;e ls nh x;h gS bldh Nk;k izfr Hkh O;kikjh ls lyXu dh x;hA bl xksnke esa VkVk vk;ju ,.M LVhy da0 dkuiqj ls [kjhns x;s eky dks tks fd fnuakd 12&9&96 ls mBuk pkyw gqvk Fkk j[kk x;k FkkA O;kikjh us nkf[ky fyf[kr Li"Vhdj.k esa ;g Hkh mYys[k fd;k gS fd fnukad 14&9&95 dks O;kikj dj vf/kdkjh] fo0 vuq0 'kk0 dk losZ{k.k gqvk ml fnu muds nknk th dk Jk) Fkk vkSj os ?kj ij FksA pw¡fd QSDVah cUn dh lwpuk foHkkx dks igys gh ns nh x;h Fkh vkSj QSDVah esa dk;Z cUn Fkk vr% QSDVah esa muds jgus dk dksbZ vkSfpR; ugha Fkk vf/kdkjh O;kikj dj ls muds HkkbZ Jh v'kksd dqekj dh eqykdkr gqbZ Fkh] tks fd iVuk fcgkj esa jgrs gSa vkSj ogka ij viuk dkjksckj ns[krs gSa os fnukad 13&9&95 dks Jk) esa 'kkfey gksus ds fy, dkuiqj vk;s gq;s Fks mUgsa gekjs O;kikj ds ckjs esa dksbZ Hkh tkudkjh ugha Fkh Jheku O;kikj dj vf/kdkjh LosPNk ls ?kwe dj viuk losZ djrs jgs LVkd esa jk&eSVsfj;y u gksus dh ckr igys gh Lohdkj dh tk pqdh gSA ftlds dkj.k bdkbZ esa fuekZ.k dk;Z cUn Fkk ;fn QSDVah esa jk&eSVsfj;y gksrk rks fuekZ.k dk;Z cUn ugha j[kuk iM+rkA O;kikjh us bl rF; dk Hkh mYys[k fd;k gS fd O;kikj dj vf/kdkjh fc0 vuq0 'kk0 us viuh fjiksVZ esa 7 e'khusa ftuesa nks pkyw gSa dh ppkZ dh gS] tks fd lR; gS ysfdu LVkd esa ik;s x;s rlyk ,oa mlds jk&eSVsfj;y dh tks dM+kgh dk :i fn;k gS og ekuus ;ksX; ugha gSA ys[kk iqLrdksa ds vuqlkj LVkd esa 490 fd0 xzk0 rlyk iqjkuk tax yxk gqvk tks fd ysDlisM eky ls uewus gS rkSj ij cuk;k x;k Fkk ,oa 588 fd0xzk0 rlyk ds lfdZy eas bu rlyksa ,oa lfdZyksa dks fnukad 14&8&05 dks cuk;k x;k FkkA pw¡fd ;g jk&eSVsfj;y iqjkuk FkkA blh dkj.k blds nke ugha fey ik;s Fks vkSj fcd ugha ldk Fkk vkSj blfy, ckdh VasfMax okys eky dk mRiknu Hkh ugha fd;k x;k FkkA INDIAN LAW REPORTS ALLAHABAD SERIES [2005 704 vr% LVkd esa ik;s tkus okyk eky yky gksuk LokHkkfod FkkA tSls fd Jheku O;kikj dj vf/kdkjh us viuh tkap fjiksVZ esa fy[kk gSA ,d ckr xkSj djus ;ksX; ;g Hkh gS fd fnukad 7&9&95 dks gh Jheku vkbZ0 lh0 dkuiqj dk losZ{k.k gqvk FkkA mUgksaus [kuj ds fuekZ.k dk;Z dks ns[kk Fkk ,oa LVkd esa j[ks gq, rlyk] rlyk ds lfeZy ns[kdj ys[kk iqLrdksa esa vius gLrk{kj Hkh fd;s Fks pw¡fd muds ykblsUl esa ?kjsyw midj.k dMkgh ugha gS vr% muds }kjk dM+kgh cukus dk loky gh ugha mRiUu gksrk gSA D;ksafd dMkgh esa nksuksa rjQ mldks mBkus ds fy, gSf.My yxk gksrk gS tcfd tkap ds le; ik;s x;s eky esa ,slk dqN Hkh ugha FkkA O;kikjh us ;g Hkh rdZ fn;k fd dMkbZ dh 'khV dkQh eksVk gksrh gS] tcfd rlyk dk 'khV gYdk gksrk gS vkSj gYdk 'khV dfVax ds cus rlys ik;s x;s FksA O;kikjh us ;g Hkh rdZ fn;k fd LVkd esa ik;k x;k eky okLro esa rlyk gh Fkk] veku Mh0vkbZ0lh0 egksn; us Hkh lR;kfir fd;k FkkA ;fn mDr losZ esa bdkbZ dk dksbZ ftEesnkj O;fDr ;k os Lo;a feyrs rks O;kikj dj vf/kdkjh] fo0 vuq0 'kk0 dks lHkh rF;ksa ls Hkyh Hkk¡fr voxr djk fn;k tkrk rFkk tkp gsrq ys[ks izLrqr fd;s tkrsA nkf[ky fyf[kr Li"Vhdj.k esa O;kikjh us bl rF; dk Hkh mYys[k fd;k gS fd [kyj cukus dk ckr Lohdkj ;ksX; gS D;ksfd [kYyj cukus esa lHkh midj.k muds ikl fnukad 24&8&95 rd miyC/k gks pqds FksA vr% fnukad 28&8&95 dks bldk dPpk eky [kjhn dj [kYyj dk fuekZ.k dk;Z pkyw fd;k x;k Fkk vkSj vxLr eky dh fcdzh dk tks :i&i= dk;kZy; esa nkf[ky fd;k x;k gS mlesa n'kkZ;k x;k FkkA pw¡fd jk&eSfVfj;y ds vHkko esa dkj.k QSDVah cUnh Fkh vr% odZ'kki esa jk&eSVsfj;y dk u ik;k tkuk LokHkkfod gh FkkA O;kikjh us vHkh rd fn;k fd muds ;gk¡ d`f"k;U=ksa dk fuekZ.k cktkj dh vko';drkuqlkj nSfud dkjhxjh ls djk;k x;k gS rFkk dkjhxjksa dks fn;s x;s Hkqxrku ds lEcU/k esa ckmplZ cuk;s x;s gSa rFkk ys[kk iqLrdksa esa fu;fer :i ls mldh iqf"V dh x;h gS ;g Hkh vuqjks/k gq, rdZ fn;k fd dkjhxjksa ds fy, ,d gh gkftjh jftLVj j[kk x;k gS ftlds vk/kkj ij muds dke djus ds fy, fnu tksMdj mudh ekfld Hkqxrku fd;k x;k gS D;ksafd muds ;gka d`f"k;U= gLrfufeZr gksrs gSa vr% muds fy, dksbZ e'khu dh vko';drk ugha iMrkA ;gh dkj.k gS fd mDr losZ{k.k esa d`f"k;U=ksa ds fuekZ.k gsrq dksbZ e'khu ugha ik;h x;h d`f"k;U=ksa dks cukus ds fy, nl Bkgs cus gq, gSa] ftu ij Nsuh gFkkSMh dh enn ls d`f"k;U= cuk;s tkrs gSa bu Bkgs dks lkeku O;kikj dj dk vf/kdkjh us vuns[kk djrs gq, losZ{k.k esa mYys[k ugha fd;kA O;kikjh us bl rF; dk Hkh mYys[k fd;k gS fd tks dkjhx.k fuekZ.k dk;Z gsrq yxk;s tkrs gSa fd os vius vkStkj Lo;a ykrs gSaA pwafd d`f"k;U=ksa dk fuekZ.k dk;Z jk&eSfVfj;y ds vHkko esa cUn FkkA bl dkj.k ls u rks dksbZ dkjhxj ml le; feyk Fkk vkSj u gh mldk vkStkj d`f"k ;U=ksa dk fuekZ.k gLr fufeZr gksus ds dkj.k e'khuksa dk u ik;k tkuk LokHkkfod FkkA LVkd esa ik;s x;s iw.kZ fufeZr [kYyj] v)ZfufeZr [kYyj ,oa mldh jk&eSfVfj;y muds ys[k fglkc LVkd jftLVj ds vuqlkj gh gSA O;kikjh }kjk LVkd dk fooj.k layXu fd;k x;k gSA tkap gsrq LVkd jftLVj@fuekZ.k jftLVj izLrqr fd;k x;kA losZ{k.k ij ik;s x;s fufeZr [kYyj dk otu 1260 fd0xzk0 v)Z fufeZr [kYyj dk otu 11054 fd0 xzk0 ,oa mlds jk&eSfVfj;y dk otu 1974 fd0xzk0 gS ftldh x.kuk Jheku O;kikj dj vf/kdkjh us ueksa esa fd;k gS Ldzsi dh ek=k gekjh ys[kk iqLrdksa ds vuqlkj 136 fd0xzk0 Fkk ftls O;kikj dj vf/kdkjh us yxHkx 100 fd0xzk0 ekuk gS O;kikjh us mYys[k fd;k gS fd ys[kk iqLrdksa esa fuekZ.k jgfr;ka dk fooj.k ek=k esa j[kk tkrk gS ftlds vuqlkj leLr fooj.k ek=k esa cuk;s x;s gSa O;kikjh us bl rF; dk Hkh mYys[k fd;k gS fd muds ;gka dksbZ Hkh eky dPpk vFkok fufeZr eky dks uD'kksa esa j[kus dk i)fr ugha gSA vr% leLr fLFkfr otu esa tksM+ dh x;h gSA O;kikjh }kjk fn;k x;k Li"Vhdj.k ekuus ;ksX; ugha gS D;ksafd fuekZ.k LFky ij tkap vf/kdkjh ds le{k dksbZ ys[ks izLrqr ugha fd;s x;s gSa] tcfd pkyku cqd o rS;kj dPps eku dk jftLVj@fuekZ.k jftLVj vo'; gksuk pkfg, FkkA tks] fd ugha ik;k x;k losZ{k.k ds le; e'khuksa ds ikl cuh [kjy 100 ihl rS;kj rFkk 50 ihl [kjy fcuk isank dk gS e'khuksa ds ikl 100 ds0th0 LVsi ik;k x;k rFkk 12 lkr bap O;kl okys 2 QhV yEcs foysMj iMs gq, ik;s x;s Fks rFkk 200 [kjys ds uhps yxus okys ,sls dVs ik;s x;s gky esa if'peh rjQ O;kl ds 5 QqV yEcs flysUMj yksgs ds 28 ihl ik;s x;s] ftudk iz;ksx Hkh [kjy cukus esa fd;k x;k gSA mDr ds vfrfjDr 4&5 dqary vk/kk bap O;kl ds yksgs ds ikbi ds VqdMs rFkk iwoZ fn'kk esa cUn iM+h e'khuksa ds ikl 144 ikl fcuk isans ds dVk ikbi j[kk ik;k x;kA if'peh nhoky ls lVs yxHkx 300 ihl rS;kj [kjy rFkk fcuk isans ds dVs j[ks ikbi [kjy fuekZ.k gsrq yxHkx 8 Vu ik;s x;s rFkk 4