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TMI Blog2017 (5) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, the basis for reassessment could at best be either change of opinion or non-application of mind, both of which would not validate an order of reassessment. Tribunal's view that based upon the same material an order of reassessment would be impermissible being in the realm of 'change of opinion', does not suffer from an error of law and is maintained - revision rejected - decided against Revenue. - Sales/Trade Tax Revision No. 171 of 2017 - - - Dated:- 17-5-2017 - Hon'ble Ashwani Kumar Mishra, J. For the Applicant : S. C. For the Opposite Party : Vishal Agarwal ORDER 1. This revision is by the State challenging an order passed by the Tribunal dated 7th October, 2010, whereby the order passed in reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the year.-(1) If the Assessing Authority has reason to believe that the whole or any part of the turnover of a dealer, from any assessment year or part thereof, had escaped assessment to tax or has been under-assessed 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 has 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 re-assess the dealer to tax according to law: Provided that the tax shall be discharged at the rate at which it would have been charged had the turnover not escaped assessment, or full assessment, as the case may be. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax, U. P. v. Madhu Chemical Works, Bareilly, 1988 UPTC 203: 1988 ATJ 579. It was held that in a case where a particular point has been considered on merits, and a view is taken, it would not be a case of inadvertent mistake or omission, if it is found that the view taken earlier was wrong. It would be a case of change of opinion, but if it is not so, then it would be a case of non-application of mind and an action would be justified under section 21 of the Act. It is contended that in the facts of the present case, there was no opinion formed by the assessing authority during the course of assessment proceedings, and therefore, the question of 'change of opinion' would not arise. Submission is that in the facts of the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in dispute in the facts of the present case that the material forming the basis for assessment and also for reassessment are one and the same. It is further apparent that on the basis of such materials, the assessing authority had accepted the claim put forth by the assessee. The reassessment proceedings are also on the basis of same set of materials. In such circumstances, the basis for reassessment could at best be either change of opinion or non-application of mind, both of which would not validate an order of reassessment. Paras 29 to 31 of the judgment in State of U.P. Vs. Aryaverth Chawl Udyoug (supra) are reproduced:- 29. This court has consistently held that such material on which the assessing authority bases its opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the assessment and again a different or divergent view is reached, it would tantamount to change of opinion . If an assessing authority forms an opinion during the original assessment proceedings on the basis of material facts and subsequently finds it to be erroneous; it is not a valid reason under the law for reassessment. Thus, reason to believe cannot be said to be the subjective satisfaction of the assessing authority but means an objective view on the disclosed information in the particular case and must be based on firm and concrete facts that some income has escaped assessment. 31. In case of there being a change of opinion, there must necessarily be a nexus that requires to be established between the change of opinion' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be a justified ground to re-initiate proceedings under Section 21(1) of the Act on the basis of change in subjective opinion (CIT v. Dinesh Chandra H. Shah, (1972) 3 SCC 231; CIT v. Nawab Mir Barkat Ali Khan Bahadur, (1975) 4 SCC 360). In view of the fact that the full value of varnish used by the petitioner had been consciously subjected to Central Sales Tax @ 2% in original assessment proceedings and no new material or information has come on record that may lead to formation of a reason to believe otherwise and there is no new or other law in favour of the revenue, we have no doubt the petitioner's assessing authority has initiated reassessment proceedings against the petitioner for A.Y. 2010-11 (UP Central) on a mere c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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