9911796707
TMI Blog1970 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... posal. The petitioner has stated that bulk of the stock of pipes is supplied to various Government departments both Central and State such as Irrigation, Public Works, Local Self-Government Engineering, Railways and Ministry of Petroleum etc., and the main use to which they are put is for culverts and other irrigation purposes as outlet for channels etc. In hydro-electric works, they are used for carrying water from reservoir to generator turbine, from dam site or source of supply to treatment works, for distribution of water, for use for underground electric cables etc. They are also used as tunnels and for transmitting petroleum from one place to another. In respect of the assessment year 1961-62, a dispute arose between the petitioner and the sales tax department as to the rate of tax on the sale of pipes manufactured by the petitioner. The Sales Tax Officer treated them as sanitary fittings and assessed their turnover at 7 per cent. while the assessee contended that the pipes manufactured and supplied by it were not sanitary fittings, but were unclassified goods taxable at the rate specified under the charging section 3 of the Act. On appeal, the assessee's contention was acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government rates in the official gazette relating to concrete pipes mentioned the rate of sales tax in Uttar Pradesh at 2 per cent. alone and even in the contract rates published by the U.P. Government for supply of these pipes in the official gazette, the State Government also mentioned the rate of sales tax at 2 per cent. It has been averred by the petitioner that in spite of all this material placed before the Sales Tax Officer, the latter framed a fresh assessment for the assessment year 1962-63 on 22nd January, 1970, treating the pipes again as sanitary fittings and levied tax at the rate of 7 per cent. He simultaneously completed the assessment for the year 1965-66 levying tax at the rate of 7 per cent. The petitioner has challenged these assessment orders in this petition. The learned counsel for the department has raised a preliminary objection. According to him, an alternative remedy by way of appeal is open to the petitioner and this court should not exercise its jurisdiction under article 226 of the Constitution permitting the petitioner to by-pass the statutory remedy. The petitioner has submitted that the question involved in this petition relates to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge (Revisions) while deciding a similar question in the subsequent assessments unless some fresh material comes before him which justifies his taking a contrary view. The Bombay High Court in H.A. Shah Co. v. Commissioner of Income-tax [1956] 30 I.T.R. 618. held: "As a general rule the principle of res judicata is not applicable to decisions of income-tax authorities. An assessment for a particular year is final and conclusive between the parties only in relation to the assessment for that year and the decisions given in an assessment for an earlier year are not binding either on the assessee or the department in a subsequent year. But this rule is subject to limitations, for there should be finality and certainty in all litigations including litigation arising out of the Income-tax Act and an earlier decision on the same question cannot be reopened if that decision is not arbitrary or perverse, if it had been arrived at after due inquiry, if no fresh facts are placed before the Tribunal giving the later decision, and if the Tribunal giving the earlier decision has taken into consideration all material evidence..." The Bombay High Court has affirmed its earlier view in B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatsoever to the pipes, the turnover whereof is in dispute. As such the Sales Tax Officer was not right in law in applying the rate mentioned in the notification under section 3-A of the U.P. Sales Tax Act. We could have disposed of this petition on the grounds already mentioned above, but since the question involved is of a recurring nature and relates to the interpretation of a notification, we have thought it fit to indicate our view on the merits also, so that the controversy raging between the petitioner and the sales tax department is set at rest. The notification with which we are concerned is Notification No. ST-1363/X-1045 (1960) dated 5th April, 1961, issued under section 3-A of the Act. Item No. 18 of that notification is "sanitary fittings" the turnover whereof is taxable at the rate of 7 per cent. at the point of sale by the importer or manufacturer. Admittedly, the petitioner is a manufacturer of hume pipes. The question is whether hume pipes fall within the category of sanitary fittings. The term "sanitary fittings" has not been defined anywhere in the Act or in the Rules. This term, therefore, has to be interpreted in a popular and commercial sense. In Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. ST-3119/X-1012(4)-65 dated 1st September, 1966, where the entry reads "sanitary goods and fittings". The petitioner has brought ample evidence on the record to show that the pipes manufactured and supplied by it were neither purchased nor used as sanitary fittings. In commercial world also there is a separate section of trade which deals in items of sanitary fittings. Hume pipes do not come in that section of the trade. The petitioner has filed the opinion of various sections of trade according to which hume pipes are not regarded as items of sanitary fittings. This allegation of the petitioner has not been controverted. All that the Sales Tax Officer has said in the assessment orders as also in the counter-affidavit is that hume pipes can also be used as sanitary fittings. That, in our opinion, is not the criterion for interpreting the term "sanitary fittings" as it occurs in the notification referred to above. The expression "sanitary fittings" must be confined, in our opinion, to such articles as are commonly understood as belonging to that category in common parlance and in the commercial sense. We are, therefore, clearly of the opinion that the pipes of the type, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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