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TMI Blog2008 (7) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... n is on terra firma and the impugned order is indefensible. The revision succeeds and is allowed and the order of the Tribunal is set aside and the question of law is answered in favour of the Department and against the dealer-opposite party. The matter is restored back to the Tribunal to hear and decide the appeal afresh as the question of quantum of turnover was not gone into therein. By way of clarification it is added that the plea that the reopening of the assessment is not valid will not be open for adjudication. - 1209 of 1998 - - - Dated:- 3-7-2008 - PRAKASH KRISHNA , J. PRAKASH KRISHNA J. The present revision is directed against the order dated April 15, 1998 passed by the Trade Tax Tribunal, Meerut in second appeal No. 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal in the aforestated second appeal. In the memo of revision, the following question of law has been raised: (i) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold that is was a matter of 'change of opinion' and not that 'non-application of mind'? Heard the counsel for the parties and perused the record. The learned standing counsel submits that indisputably the earlier assessment order was passed under summary scheme without there being any application of mind by the authority concerned and as such the very initiation of proceedings under section 21 on the ground of the information received that the bone meal was not sold as fertilizer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osite party on its merit, a summary assessment order was framed. It follows that there was no application of mind by the authority concerned to the reply submitted by the dealer-opposite party. This factual position after looking into the original assessment file was not seriously disputed by the learned counsel for the dealer-opposite party. The controversy thus narrows down to this that there was no application of mind by the assessing officer while passing the original assessment order. In other words, the claim of the dealer-opposite party that the bone meal was sold as fertilizer or to the ceramic manufacturers remained unscrutinised. In this view of the matter I am of the firm view that it is not a case of change of opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued. On this basis, the High Court has held that nothing new was stated even in the impugned notice and as such the initiation of re-assessment proceeding is vitiated. The High Court was satisfied after perusing the original assessment order that the entire material was considered in the assessment order. In this factual background it was held that reassessment proceedings are not permissible. Here the factual position is quite distinct and different. As noticed above, and as also not disputed by the learned counsel for the dealer, there is total lack of discussion with regard to the taxability of bone-meal in the original assessment order. This being so, it cannot be said that it is a case of change of opinion. Viewed as above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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