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TMI Blog2013 (11) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the items so as to accept the argument that the proceedings of reassessment were based on change of opinion. - The order of the Commissioner under section 35 of the Act would form the material, the basis on which the reassessments proceedings have been initiated is the wrong application of rate of tax by the assessing authority. The order of the Commissioner may not be conclusive in that regard but would definitely be a material to initiate proceedings under section 21(2) of the Act. It will be open to the petitioner to establish by producing all such material, which may be relevant that VCD and DVD players are based on different technology and would not fall within the category of entry 75(i)(a), for the purpose of rate of tax, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d February 14, 2004 and bill No. 52 dated March 15, 2004, the petitioner's contention that the trade tax was wrongly charged at the rate of 12 per cent. was accepted. 4. Sri Praveen Kumar submits that in the show-cause notice dated May 21, 2007, under section 21(2) of the Act, the Additional Commissioner, Trade Tax, Ghaziabad, has taken a ground that the turnover of DVD and VCD players (electronics) is to be charged at the rate of 12 per cent. and not at the rate of eight per cent. Along with amendment application, the petitioner has annexed the order dated June 29, 2007 in which the Additional Commissioner has relied on an order dated February 27, 2007 passed by Commissioner, Trade Tax, U. P., under section 35 of the Act, in which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the turnover of sale of VCD and DVD is to be charged at the rate on which trade tax was charged on the turnover of VCP/VCR. 6. It is submitted by Sri Praveen Kumar that the reassessment proceedings have been initiated on the basis of change of opinion, which is not permissible. He submits that the order of the Commissioner dated February 27, 2007, under section 35 of the Act is not binding on other assessees, and thus the Department cannot charge trade tax at different rates on the turnover of same type of goods in respect of the petitioner than the other assessees. In any case, the view taken by the Commissioner dated February 27, 2007, under section 35 of the Act is in prospective nature and would be applicable for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the assessing authority in the present case had reason to believe that any part of the turnover of the respondent had escaped assessment to tax for the assessment year 1957-58. Question in the circumstances arises as to what is the import of the words 'reason to believe', as used in the section. In our opinion, these words convey that there must be some rational basis for the assessing authority to form the belief that the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for some year. If such a basis exists, the assessing authority can proceed in the manner laid down in the section. To put it differently, if there are, in fact, some reasonable grounds for the assessing authority to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessment to tax was due to concealment by the assessee or negligence and ignorance on part of assessing officer. 11. We have considered the submissions and have carefully gone through the orders passed by the authorities and notice of reassessment under section 21(2) of the Act. We do not find that the assessing authority has recorded any finding or had taken view either way as to whether VCD and DVD players, would attract tax at the rate of 12 per cent. under entry 75(i)(a) or at the rate of eight per cent. in the residual entry 75(ii), (iii). The assessing authority simply accepted the return filed by the assessee, and agreed that there was an error in respect of some of the consignments in which tax was erroneously charged at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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