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TMI Blog2005 (3) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... ich would certainly run contrary to the prima facie object and intention to grant exemption to tyre and tube used as part of agricultural implement (i.e., cart ), cannot be accepted. Moreover, we find no apparent or reasonable ground, with reference to the object and purpose, for creating a distinction between a cart which has wheel (with tyre, tube pneumatic tyre) and one which does not have such tyre-tube, when referred to an agricultural implement . We, therefore, hold that the exemption granted to the petitioner in respect of tyre and tube, which is undoubtedly a part of cart used as agricultural implement, on alleged pretext of change of opinion by the assessing authority, does not justify reassessment and no case is made, in the facts of instant cases, to warrant exercise of reassessment by the respondents u/s 21 of the Act. In the result, the impugned orders dated February 25, 2005/ annexure 10 in W.P. (assessment year 1998-99), annexure 4 in W.P.(assessment year 1999-2000), annexure 4 in W.P. No. 457 of 2005 (assessment year 2001-02) and consequent notices are set aside. Writ petitions stand allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings under section 21(2) of the Act. The said notice further referred to certain notifications with regard to exemption from trade tax on animal driven vehicle/cart with or without tyre and tube. The Additional Commissioner further stated that keeping in mind that earlier in the relevant notification expression "tyre/tube" was mentioned against the article called "cart" and since the words "tyre/tube", etc., were deleted subsequently by another Government notification, no exemption could be granted and trade tax at the rate of 10 per cent was leviable on "tyre/tube" sold by the petitioner in the assessment years in question. 8. The petitioner submitted his explanation/objection on February 14, 2005/annexure 9 to the writ petition. The said objection referred to relevant entries in different notifications and contended that expression "cart" read with other expressions in the relevant notifications, viz., "parts, accessories and attachment thereof" leave no scope for ambiguity and clearly included in it "tyre and tube" as part/attachment of cart--used as ADV mentioned in the list of "agricult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to tax or has been underassessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer or tax according to law: Provided. . . Explanation I. . . Explanation II. . . Explanation III. . . (2) Except as otherwise provided in this section, no order of assessment or reassessment under any provision of this Act for any assessment year shall be made after the expiration of two years from the end of such year or March 31, 1998, whichever is later: Provided that if the Commissioner on his own or on the basis of reasons recorded by the assessing authority, is satisfied that it is just and expedient so to do, authorizes, the assessing authority in that behalf, such assessment or reassessment may be made after the expiration of the period aforesaid but not after the expiration of six years from the end of such year or March 31, 2002, whichever is later notwithstanding that such assessment or reassessment may invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer refers a matter, recommending reassessment the Commissioner has before him, reasons recorded by the said assessing authority after giving notice to the dealer. When suo motu action is proposed by the Commissioner, then there are no reasons on record by the assessing authority, therefore, the Commissioner, under the said provision, must record his satisfaction that it is just and expedient to permit reassessment. It will ensure that such action is not arbitrary or on whims. This reflects upon the nature of the jurisdiction and fully ensures that it is not exercised on whims or arbitrarily and that a good ground, sustainable in law, exists on record to justify reassessment. 19. In the light of the above, we may examine as to whether the impugned orders dated February 25, 2005 passed by the Commissioner contain reasons recorded after application of mind, which must provide justiciable ground to initiate reassessment proceedings. 20. In the impugned orders, it is asserted that on perusing the recommendation by the Deputy Commissioner/assessing authority and objection filed by the dealer, it was possible to change opinion. There is no mention that the assessing authority was igno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d2, Banda [2005] 139 STC 397 (All); [2004] UPTC 210, para 17 (para 16 in STC), referred to the case of Kalpana Kala Kendra v. Sales Tax Officer [1989] 75 STC 198 (All); [1989] UPTC 597, and observed: "Section 21 of the Act is based upon the theory that the taxes must be paid by the assessee in correct sum and likewise it must be collected by the statutory machinery. The escapement from assessment whether it results on account of a concealment practised or fraud played by the assessee or as a result of negligence or ignorance of the assessing authority, in our opinion, is of no consequence, provided the action to reopen the assessment is otherwise justified and the assessing officer is not acting arbitrarily or in a capricious manner. The escapement of assessment contemplated under that section may be due to various reasons. The terms 'turnover has escaped assessment to tax', which includes under-assessment, may as well be a result of lack of care on the part of the assessing officer or by reason of inadvertence on his part. Section 21 does not prohibit obtaining of information from the investigation of material on the record of the original assessment. The scope of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 4 of the U.P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with section 25 of the aforesaid Act and section 21 of the U.P. General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased to make, with effect from September 7, 1981, the following amendment in Government Notification No. ST-911/X dated March 31, 1956: AMENDMENT. For item No. 1 of List II of the aforesaid notification, the following shall be substituted, namely: '1. Agricultural implements worked by human or animal power .................................................. Animal driven vehicles including carts having pneumatic tyre-wheels and tyres and tubes thereof, crow bars, sugarcane planters and accessories, attachments and spare parts of these agricultural implements.'" II. U.P. Gazette, dated January 31, 1985 (annexure 3 to W.P.) In exercise of the powers under clause (a) of section 4 of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), and in supersession of all previous notifications issued under the aforesaid clause (a) of section 4, the Governor is pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t expressions in the notification be read together; and article "cart" cannot be read in isolation in Sl. No. 1, Column 2 of the said notification; relevant expressions-"Agricultural implements and parts, accessories and attachments thereof. . ." 32. The petitioner, invited the court to read relevant expressions together in the notification thus, the relevant contents of the "notification" shall read-"Cart and parts, accessories and attachment thereof". 33. Admittedly, cart is an agricultural implement. 34. On behalf of the respondent, learned Standing Counsel submitted that deletion of the words "tyre/tube and pneumatic tyre" shows the intention to exclude carts with tyre/tube from exemption. 35. We are unable to accept the argument made on behalf of the respondents for more than one reason. 36. Deletion of words explanation in statutory provision does not always indicate that "Legislature" or its propounder intends to exclude something to provide for negative scope. On a given occasion, redundant or superfluous words/expressions which are redundant or likely to cause ambiguity, are deleted with no consequence. 37. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matic tyre. It is not possible to imagine a cart which has no wheel. If cart is in the category of agricultural implements, namely, falling under list of agricultural implements mentioned in aforesaid Gazette notification dated June 30, 1986, "cart" undisputedly an agricultural implement in the notification in question, by necessary implication, includes as its part "wheel" with "tyre and tube". 40. The words "parts, accessories and attachment thereof" in the notification indicate, in unambiguous terms, that even a part of "cart" used as an agricultural implement is extended exemption. 41. The petitioner rightly contends that notification be read as a whole and the relevant expressions have to be read together to gather correct meaning as otherwise it will be against the accepted rule of interpretation, viz., a statute or relevant provision must be read as a whole and in the light of its reference and context. 42. The above observation is fully fortified by the ratio decidendi laid down in Government of Tamil Nadu v. Pv. Enter. Rep. By SCM Jamuludeen [2000] JT (Suppl. 3) SC 442 and Goodyear India Ltd. V. State of Haryana [1990] 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 46. Moreover, we find no apparent or reasonable ground, with reference to the object and purpose, for creating a distinction between a "cart" which has wheel (with tyre, tube pneumatic tyre) and one which does not have such tyre-tube, when referred to an "agricultural implement". 47. The view taken by us is also in consonance with the view taken by the respondent in the case of Metro Tyres Limited (referred to above). 48. We, therefore, hold that the exemption granted to the petitioner in respect of tyre and tube, which is undoubtedly a "part" of "cart" used as agricultural implement, on alleged pretext of change of opinion by the assessing authority, does not justify reassessment and no case is made, in the facts of instant cases, to warrant exercise of reassessment by the respondents under section 21 of the Act. 49. In the result, the impugned orders dated February 25, 2005/ annexure 10 in W.P. No. 455 of 2005 (assessment year 1998-99), annexure 4 in W.P. No. 456 of 2005 (assessment year 1999-2000), annexure 4 in W.P. No. 457 of 2005 (assessment year 2001-02) and consequent notices are set aside. 50. Writ petitions stand allowed. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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