Commissioner, Commercial Tax vs Alka Restaurant

Barin Ghosh, C.J.—This revision application is delayed by 310 days. Accordingly, an application has been filed for condonation of delay in preferring the revision application. This Court, while considering the matter on 11th June 2010, did not direct issuance of notice at least in the application for condonation of delay upon the respondent, instead directed production of translated version of the impugned order. Today the translated version of the impugned order has been produced. We have perused the impugned order of the Tribunal, and after having had perused the same, we are of the view that the present revision application, being utterly meritless, we need not condone the delay in preferring the revision application, and accordingly, need not serve any notice upon the respondent.

The amount of tax involved in the revision is Rs. 10,250. The fact remains that the Assessing Officer concluded the assessment by passing an order under Rule 41(8) of U.P. Trade Tax Rules, 1948 (hereinafter referred to as the �Rules�) on the basis of best judgment. Subsequent thereto, he purported to initiate proceedings u/s 21 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as the �Act). The reason for initiation of proceeding u/s 21 was not that any amount escaped assessment. The reason for initiation of the said proceeding was basically change of an opinion. Further, before proceedings u/s 21 were initiated, no notice was given to the assessee. In the circumstances, noting different judgments rendered by the Tribunal on earlier occasions on similar subjects, the Tribunal allowed the appeal of the assessee and quashed the proceedings u/s 21 of the Act.

The fact remains that the moment assessment order was passed under Rule 41(8) of the Rules on the basis of best judgment, the proceeding pertaining to assessment stood concluded. The same could be reopened u/s 21, only when it had been made absolutely clear that the concluded assessment has escaped assessment on certain other items. When the original assessment was made, it was taken note of that cooked food of certain amount had been sold. Later on it was purported to be contended that in the matter of preparation of such cooked food, certain materials were purchased. The object was only to enlarge the quantum of the assessed cooked food sold. While the best judgment assessment was made, sale of cold drink was taken note of and exception thereon was allowed, proceeding on the basis that the same was purchased from registered dealers. When recourse was purportedly taken u/s 21, it was held out that such exemption is not allowable, since such purchase was not made from registered dealers. As aforesaid, recourse to Section 21 could not be taken in such circumstances.

For what we have stated above, we feel that there was no legal basis of initiating proceedings u/s 21 of the Act. Not only for there was no reason to do so, but also for the reason that no show-cause notice was issued before initiating proceedings u/s 21 of the Act. We are also of the view that steps to initiate proceedings u/s 21 were taken, not because some items escaped assessment of tax, but because the Assessing Officer felt that what he did while concluding the matter when assessment order was passed on best judgment principle, he made a mistake and that was required to be corrected, which, in any event, not permissible in law.

For the reasons as above, the application for condonation of delay in preferring the revision application is dismissed and consequentially the revision application is also dismissed.