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TMI Blog2007 (7) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years 1994-95 and 1995-96, filed as Annexure 10 to the writ petition, as also a writ of mandamus declaring the authorisation issued by the Additional Commissioner, Grade I, Trade Tax, Bareilly, respondent no.2, under the proviso of sub-section (2) of Section 21 as invalid. Briefly stated, the facts giving rise to the present petition are as follows:- M/s Ramayan Traders was a partnership firm consisting of two partners, namely, Sarvasri Navin Kumar and Vipin Kumar, which carried on the business of liquid glucose and chemicals etc. at 293, Gangapur, Bareilly upto 18.9.1994. The firm has been reconstituted from 18.9.1994. The reconstituted partnership firm consisted of Sri Navin Kumar and Smt. Petrichha Mehrotra as partners. The er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner to appear alongwith the books of account and other documents for completion of the assessment under Section 21(2) of the Act. The grant of authorisation/sanction as also issuance of notice under Section 21(2) of the Act have been challenged on the ground that the decision of the Gujarat High Court in the case of M/s Cadilla Laboratories on the basis of which sanction has been sought, is not applicable and further, the respondent no.2 had not considered the reply submitted by the petitioner in detail and had mechanically granted the sanction for reopening the assessment under Section 21(2) of the Act. Further, the entire exercise has been taken on a mere change of opinion. Moreover, this Court in the case of CST v. M.G. Co. (D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court, being binding, has to be followed. Thus, the proceedings are justified. The liquid glucose is taxable @ 10% and not 7.5% as alleged. In the rejoinder affidavit filed by the petitioner, it has been stated that the Apex Court had simply dismissed the Special leave Petition without adjudicating the matter on merit. It cannot be taken as laying down the binding law to the effect that the liquid glucose is not a drug. It has simply declined to entertain the Special leave Petition against the judgment of the Gujarat High Court. Further, the decision of the Tribunal, which is inter partes, relating to earlier assessment, is binding upon the respondents till such time it is not set aside by a competent Court of law. The authorisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught any other material on record to justify the proceeding for re-assessment and is based on mere change of opinion, which is not permissible. He placed reliance upon the decision of this Court in the case of M/s M.G. Co. (Delhi) Pvt. Ltd. (supra). In reply, Sri M.R.Jaiswal submitted that as the Apex Court in the case of M/s Cadilla Laboratories (supra) has held that the liquid glucose to be not a drug, which is binding upon the authorities and, therefore, there has been a short levy of tax or a case of under assessment. He further submitted that the Additional Commissioner is not required to assign any reason while granting approval/sanction for proceeding under Section 21(2) of the Act. He, thus, justified the proceeding. In support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laboratories (supra). The reporter had given some brief fact about what had been held by the Gujarat High Court. From the report, it does not follow that the Apex Court had given any reason for upholding the decision of the Gujarat High Court that the liquid glucose is not a drug. In the case of Kunhayammed and others v. State of Kerala and another, (2000) 6 SCC 359, the Supreme Court has considered the effect of dismissal of Special Leave Petition and has held that dismissal at the stage of Special Leave Petition by a non-speaking order, does not constitute res judicata and does not culminate in merger of the impugned decision. In the case of Indian Oil Corporation Ltd. v. State of Bihar, 1986(4) SCC 146, the Apex Court has held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e - I, Trade Tax, Zone Ghaziabad and another, (Civil Misc. Writ Petition No.483 of 2002), decided today, reasons have to be assigned by the Additional Commissioner while granting sanction/approval for initiating proceeding under Section 21(2) of the Act. As no reason has been assigned, the authorisation/sanction dated 12.7.2001 cannot be sustained and is hereby set aside. As the authorisation itself has been set aside, the proceedings taken in pursuance thereof also cannot be allowed to stand and are set aside. In this view of the matter, it is not necessary for us to go into the merits of the other issues raised on behalf of the petitioner. The Additional Commissioner is directed to pass a fresh order in accordance with law in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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