9911796707
TMI Blog2000 (2) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... taxed as an unclassified item at the rate of 5 per cent. 2.. Assessment years involved are 1985-86, 1986-87 and 1988-89. While impugned assessments under the first two assessment years were completed under section 19 of the Act, for the assessment year 1988-89, it was completed under section 17 of the Act. 3.. Factual position, as highlighted by the parties, is as follows: Assessee is the second seller of soda makers. For the first two assessment years, original assessment was completed on October 20, 1986 and July 21, 1988 respectively, treating soda maker as an article falling under item 156 of the First Schedule to the Act. Subsequently, assessments were reopened under section 19 of the Act. It was held by the assessing officer for al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the assessee and also in the records, there is nothing to show that Government order dated April 16, 1988 was the basis for initiation of the proceedings. In any event, for the assessment year 1988-89, original assessment has been done. Merely because the first appellate authority has referred to the Government order as an additional to justify his conclusion, that is not sufficient to hold that the basis for reopening was the Government order dated April 16, 1988. 6.. There is no dispute to the position that section 59A of the Act has been held to be unconstitutional and violative of article 14 of the Constitution. Therefore, the taxing authorities were not bound by the said order. Clarifications/circulars issued by the Central Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levying tax. In the notices issued for reopening, it is stated in clear terms that on further scrutiny, the mistake committed in granting exemption was noticed and, therefore, action was taken. In the orders of assessment also, there is no reference to Government order dated April 16, 1988. The first appellate authority, while referring to the same, has not indicated that same was the foundation for action under section 19 of the Act. That plea of the assessee has no substance. 8.. Factually, Tribunal held that soda maker is not an article made of plastic to be covered by item 156 of the First Schedule. It has been indicated that there is metallic gas cylinder in it and it can never be termed as plastic product as only the outer cover is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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