2014 (5) TMI 304 - HC - VAT and Sales Tax

Rate of Tax Whether Asessing Authority had correctly applied rate of tax at 5% on the same items, was subject matter of consideration both in the assessment years 1999-00 and 2000-01, which was to decide earlier and in respect of assessment year 1998-99 - Classification - Miscellaneous scraps - Interpretation of Statute Reassessment - Held that - Even if we accept that the audit report is not the basis of reopening assessment, the reasoning on which Division Bench held that the reassessment in the case of applicability of the rate of tax on Misc. scraps which will amount to change of opinion, will cover the field - Though the principle of res - judicata is not applicable in tax matters relating to different assessment years, the reasons on which reassessment was set aside are the same - The report of the audit party annexed to the writ petition was in respect of two assessment years, this Court has already taken the view that the order u/s 21 (2) amounted to change of opinion on which reassessment could not be made - Respectfully following the reasoning, on which the writ petition filed by the same petitioner was allowed, on the same issue in respect of assessment years 1999-2000 and 2000-01 in respect of the same assessee, It is found that the order in the present case under the proviso to Section 21(2) authorising the reassessment is also liable to be set aside. In the present case the interim order was made on 31.3.2005 - In the counter affidavit it is stated that on the same day, when the interim order was passed on 31.3.2005, the order of reassessment was passed, which in compliance of the High Court s order dated 31.3.2005 has not been served upon the assessee - Since prayers are allowed and orders for reopening assessment are set aside, the orders of the DC, Moradabad dated 18.3.2005 and 23.3.2005 by which he authorised reassessment for the year 1998-99 shall not be acted upon Decided in favour of assessee.

Summary

Issues:
1. Interpretation of notification for demanding rate of tax.
2. Initiation of reassessment proceedings on the basis of change of opinion.
3. Applicability of res judicata in tax matters relating to different assessment years.

Analysis:
1. The petitioner sought relief through a writ petition to quash impugned notices issued by the Deputy Commissioner for the assessment year 1998-99, regarding the imposition of tax on the sale of miscellaneous scrap. The petitioner argued that the assessing authority imposed tax at 5% based on a notification, but an audit objection suggested a 10% tax rate for certain items. The Addl. Commissioner sanctioned reassessment under Section 21(2) due to expired limitation. The petitioner cited Apex Court judgments, emphasizing that any interpretation of the tax rate notification would constitute a change of opinion, rendering reassessment invalid.

2. The judgment delves into a previous case involving similar issues regarding the tax rate applicable to waste polythene, waste broken glass, waste scraps, and rejected PP Seals. The Division Bench's decision highlighted the assessing authority's change of opinion on the tax rate, leading to the initiation of reassessment proceedings under Section 21(2). The judgment emphasized that reassessment based solely on a change of opinion without fresh material is impermissible. The State's argument that each assessment year should be treated separately was countered by the court, which found the Addl. Commissioner's opinion not based on the audit report but formed independently.

3. The court addressed the principle of res judicata in tax matters related to different assessment years. Despite each year being treated separately, the court found that the reasoning behind setting aside reassessment orders for other years applied to the current case. The court concluded that the order authorizing reassessment for the year 1998-99 should be set aside, aligning with the reasoning from a prior judgment involving the same petitioner. The interim order preventing the service of the reassessment order was noted, and the court directed that the reassessment order should not be acted upon following the setting aside of the orders for reopening assessment.