2017 (5) TMI 796 - HC - VAT and Sales Tax

Jurisdiction - power to reassess - re-assessment on the ground that the turnover of sale of the air ventilators has escaped assessment as tax at the lower rate of 5% instead of 13.5% was charged - Held that - Section 29 of the U.P. VAT Act, authorizes the assessing authority to draw proceedings for re-assessment provided it has reason to believe that (i) any turn over of the dealer has escaped assessment to tax; (ii) has been under assessed; (iii) has been assessed to tax at a rate lower than one prescribed; and (iv) if any deduction or exemption has been wrongly allowed in respect thereof - existence of reason to believe is an essential condition for exercising the power of re-assessment. Apart from the fact that the assessing authority has subsequently come to the conclusion that the air ventilators in which the petitioner deals were not taxable as a classified items at the rate of 5% but as un-classified item at the rate of 13.5% is nothing but a change of opinion on the allegation that the order of assessment was passed without application of mind. The assessing authority is not vested with any power to review its order or an order of assessment. The assessment order passed by the assessing authority is only open for re-assessment subject to fulfilment of the essential conditions as laid down under Section 29 of the U.P. VAT Act. The power of re-assessment is quite different and distinct from that of review or of the appellate power. Therefore, the assessing authority cannot utilize the power of re-assessment in the ordinary course as if it is sitting in review or in appeal over his own order of assessment. In the absence of any such material and a valid reason to believe that the income has escaped assessment the assessing authority was not competent to draw the proceedings for re-assessment and the Commissioner is not justified in law to grant permission under Section 29 (7) of the Act - petition allowed - decided in favor of petitioner.

Summary

Issues:
Challenge to re-assessment order based on jurisdiction and reason to believe.

Analysis:
The petitioner, a proprietorship firm dealing in iron and steel items, was assessed to tax on air ventilators at 5% in the 2011-2012 assessment year. Subsequently, an order was issued for re-assessment at a higher rate of 13.5% due to alleged under-assessment. The petitioner challenged this re-assessment order on the grounds that there was no valid reason to believe that the turnover had escaped assessment at a lower rate.

The assessing authority argued that the air ventilators were unclassified items taxable at 13.5% and claimed that the turnover had escaped assessment due to the lower tax rate applied. Section 29 of the U.P. VAT Act allows re-assessment if the authority has reason to believe that turnover has escaped assessment, been under-assessed, or assessed at a lower rate. The authority must have a valid reason to believe for initiating re-assessment proceedings.

The High Court referenced a recent Supreme Court decision emphasizing that the "reason to believe" must be based on concrete facts and not on a mere change of opinion. The Court clarified that the assessing authority cannot re-assess based on a review or appeal of its own order, as re-assessment is distinct from these processes. The judgment highlighted that the authority lacked material to support a valid reason to believe that the turnover had escaped assessment at a lower rate.

The Court concluded that the re-assessment order and subsequent notices were without jurisdiction, illegal, and invalid. Citing the Supreme Court's precedent, the Court quashed the impugned order and notices, allowing the writ petition in favor of the petitioner. The judgment emphasized the importance of a valid reason to believe for re-assessment under the U.P. VAT Act, ensuring the authority acts within its jurisdiction and legal boundaries.