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TMI Blog2019 (8) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014. We therefore repel the argument made on behalf of the State that the definition so given to the word market value is only clarificatory and that by itself can be used as the basis for reopening the assessments which have attained finality prior to the amendment dated April 1, 2014. Appeal dismissed. - Writ Appeal Nos. 697, 699, 702, 703, 708 and 712 of 2018. - - - Dated:- 26-11-2018 - AJAY KUMAR TRIPATHI C. J. AND PARTH PRATEEM SAHU J. Prafull N. Bharat , Additional Advocate General, for the appellants. M. P. Devnath , Raja Sharma and Animesh Verma for the respondents. JUDGMENT The judgment of the court was delivered by Ajay Kumar Tripathi C. J. -Heard counsel for the parties. 2. A batch of writ appeals have been preferred by the State of Chhattisgarh against a common order passed on August 9, 2017 by a learned single judge, the lead case being Writ Petition (T) No. 118 of 2015 and other analogous cases, relating to Ultra Tech Cement Limited as well as an order dated July 17, 2017 passed in Writ Petition (T) No. 157 of 2014, i.e., Ambuja Cements [2018] 55 GSTR 420 (Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods liable to tax under this Act or the Act repealed by this Act during any period,- (a) has been underassessed or has escaped assessment ; or (b) has been assessed at a lower rate ; or (c) any wrong deduction has been made while making the assessment ; or (d) a rebate of input tax has incorrectly been allowed while making the assessment ; (e) is rendered erroneous and prejudicial to the interest of revenue consequent to or in the light of any judgment or order of any court or Tribunal which has become final, the Commissioner may, at any time within a period of three calendar years from the date of order of assessment or from the date of judgment or order of any court or Tribunal, proceed in such manner as may be prescribed, to assess or reassess, as the case may be, the tax payable by such dealer, after making such enquiry as he considers necessary, and assess or reassess to tax. 8. While dealing with the said provision, the learned single judge Ambuja Cement Limited v. State of Chhattisgarh [2018] 55 GSTR 420 (Chhattisgarh) while relying on series of judicial precedents emerging from the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or has been under-assessed is a condition precedent to issuance of notice of reassessment under section 12(8) of the Act and the existence of such reason is sine qua non for the issuance of notice. Their Lordships concluded in paragraph 8 of the report as under (page 576 in 30 STC) : '8. Although the opening words used in section 12(8) are if for any reason and not if the sales tax authority has reason to believe , the difference in phraseology, in our opinion, should not make much material difference. A reason cannot exist in vacuum. Somebody must form the belief that reason exists and looking to the context in which the words are used, we are of the view that it should be the sales tax authority issuing the notice who should have reason to believe that the turnover of a dealer has escaped assessment or has been under assessed. The approach in this matter has to be practical and not pedantic. Any view which would make the opening words of section 12(8) unworkable has to be avoided. It may be noted in this context that in Form VI appended to the rules, which has been prepared in pursuance of rule 23, the words used are whereas I have reason to believe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the Department, then, in the garb of re-opening the assessment, review would take place. 7. One must treat the concept of change of opinion as an inbuilt test to check abuse of power by the assessing officer . . . .' 23. It is well settled law that mere change in opinion/reaching different or divergent view (as to one reached at the time of original assessment) while perusing same material cannot give rise to necessary precondition of 'reason to believe' to reopen concluded assessments and accordingly, reassessment cannot be done on mere change in opinion. The Supreme Court in the matter of State of Uttar Pradesh v. Aryaverth Chawl Udyoug [2016] 91 VST 1 (SC) ; [2014] SCC OnLine SC 1205 has clearly held that discovery of an inadvertent mistake or non-application of mind during assessment would not be a justified ground to reinitiate the concluded assessment and has held in paragraph 31 as under (para 30, pages 15 and 16 in 91 VST) : '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 and the material present before the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment and the reassessment proceedings and no additional material or facts have been referred to explaining such reason to believe as per the mandate of section 21(1) of the Act before initiating reassessment proceedings. In fact, the asses sing authority has not indicated any material at all that has given rise to such reason and thus, on the basis of mere change of opinion concluded that exemption on purchase tax has wrongly been allowed'. 9. There is no dispute or argument that by virtue of notices issued to the cement companies assessments already made and having attained finality, beginning financial years 2007-2008, 2008-2009 and 2009-2010 were sought to be reopened. 10. The communication brought on record as Annexure P/1, dated June 16, 2014, issued under the signature of the Commissioner, Commercial Taxes is unambiguous as to the reason for reopening of assessments, i.e., amendment notified in the year, 2014 effective April 1, 2014 by defining the word market value by adding section 2(fff). The notification reads as under : 2(fff) 'Market value' means the value at which the goods are generally sold in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have been acquired or obtained, otherwise than by way of purchase. Despite the said provision, while making earlier assessments, certain components including the expenses met by these companies towards payment of royalty was not being disclosed and there was under valuation of the goods. In this case limestone, and therefore, in the interest of revenue, such clarificatory notification was in order and formed the reason to believe . 15. The line of argument pleaded and urged on behalf of State, while assailing the judgments of the two learned single judges passed in the writ applications, does not satisfy the test of legal principles in matter of interpretation which is required to be given, especially, to taxing statute. 16. The assessing authorities had made assessments on the declarations made by the companies on the basis of understanding of law as stood then. If the assessing authorities subsequently found some ambiguity or shortfall in the definition of value of goods in section 2(l), for which a corresponding amendment was required to be brought about in the year 2014, the same is a substantive amendment. It further ties down the State since t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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