2016 (12) TMI 1097 - HC - VAT and Sales Tax

When the re-opening of assessments can be made? - reassessment under Section 31 of the Act - Held that - the provisions of the section 31 are on similar lines as the un-amended provisions of Section 147 of the Income Tax Act and that they provide for two categories of cases; but even the provisions of Section 147 of the Income-tax Act amended in the year 1989 make it clear that there must be reason to believe that there has been under-assessment or escaped assessment, etc. and as has been held in the case of Kelvinator 2010 (1) TMI 11 - SUPREME COURT OF INDIA by the Apex Court, it should not be a mere change of opinion, otherwise it would amount to arbitrary exercise of power by the assessing officer to reopen the assessment. The said law emphatically laid down by the Supreme Court in Kelvinator s case is squarely applicable in the present matter also and it has to be held that reassessment cannot be made on a mere change of opinion. - Decided in favor of assessee. Whether the decision of the Supreme Court subsequent to the assessments can be considered a mere change of opinion? - Held that - a subsequent reversal of legal position by the judgment of the Supreme Court does not authorize the Department to reopen the assessment which stood closed on the basis of law at the relevant time. Cases where no assessment was done earlier - Held that - If the assessing authority had no occasion to form an opinion during the course of such deemed assessment of the returns filed by the petitioner, and subsequently a notice was issued under Section 31 (1) of the Act, or assessment made under Section 27, albeit on the ground of decision rendered by the Supreme Court, it could not be said that there has been any change of opinion. For the said reason, I am of the view that so far as the remaining eight cases are concerned, the plea of the petitioners regarding change of opinion is not applicable. - Decided against the assessee.

Summary

Issues Involved:
1. Quashing of orders for different financial years under Section 31 of the Bihar Value Added Tax Act, 2005.
2. Reassessment based on the Supreme Court's judgment in the Nokia India case.
3. Applicability of the principles of res judicata and constructive res judicata.
4. Validity of reassessment based on change of opinion.
5. Availability of alternative statutory remedy.

Detailed Analysis:

1. Quashing of Orders Under Section 31 of the Bihar Value Added Tax Act, 2005:
The petitioners sought to quash different orders for various financial years passed by the assessing officer under Section 31 of the Bihar Value Added Tax Act, 2005. The cases were divided into two categories: those with previous assessments under Sections 31 or 33 of the Act and those deemed assessed under Section 26. The petitioners argued that mobile phone chargers are provided free of cost with mobile phones and should not be taxed separately. They contended that the composite pack of mobile phones and chargers should be taxed at the rate specified for mobile phones.

2. Reassessment Based on the Supreme Court's Judgment in the Nokia India Case:
The Supreme Court's decision in State of Punjab vs. Nokia India Ltd. held that mobile phone chargers are accessories and not part of the mobile phone. This led the assessing officers to issue notices for reassessment, claiming that the petitioners were paying a lower tax rate by including the charger’s price in the mobile phone value. The petitioners argued that this decision should not apply to their cases as they did not admit chargers as accessories and that the reassessment based on this ruling was a mere change of opinion.

3. Applicability of Res Judicata and Constructive Res Judicata:
The petitioners contended that the principles of res judicata and constructive res judicata do not apply. They argued that points not raised in earlier proceedings could be raised subsequently, and since they were not parties to the Nokia case, they could raise new points of fact and law. The court referenced the decision in Bharat Sanchar Nigam Ltd. vs. Union of India, which allows for differing views in subsequent tax cases if distinguishable or per incuriam.

4. Validity of Reassessment Based on Change of Opinion:
The petitioners argued that reassessment based on the Supreme Court's decision constitutes a change of opinion, which is not a valid reason for reassessment. They cited the Supreme Court's decision in Commissioner of Income-tax vs. Kelvinator of India Limited, which held that reassessment must be based on tangible material and not merely a change of opinion. The court agreed, stating that reassessment on the same materials without new information would be arbitrary and without jurisdiction.

5. Availability of Alternative Statutory Remedy:
The State argued that the petitioners had an alternative statutory remedy under the Act, and the writ petitions should not be entertained. The court noted that in cases of reassessment based on a mere change of opinion, the writ court could interfere. However, for cases without previous assessments under Sections 31 or 33, the court held that the plea of change of opinion was not applicable, and the petitioners should pursue the statutory remedy.

Judgment:
The court allowed the writ petitions for cases with previous assessments (C.W.J.C. Nos. 3968/2015, 3997/2015, 4994/2015, 4868/2015, 4709/2015, 5119/2015, 4845/2015, and 4826/2015), quashing the impugned orders and demand notices. For cases without previous assessments (C.W.J.C. Nos. 3942/2015, 3953/2015, 8886/2016, 4988/2015, 5227/2015, 4020/2015, 4825/2015, and 4963/2015), the court dismissed the petitions on the ground of availability of alternative statutory remedy. The court directed that if the petitioners file statutory appeals within four weeks, the appellate authority should consider them, and no coercive action should be taken until the stay petitions are disposed of.