TaxTMI 
TaxTMI 
2013 (6) TMI 604
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....10 of 2011, the petitioner has prayed for a writ of mandamus or prohibition restraining the Deputy Commissioner (Assessment), Sector-11, Commercial Taxes, Agra, from proceeding with re-assessment proceedings under Entry Tax Act for assessment years 2004-05 and 2005-06 in pursuance to the notices dated 14.3.2011, and further to quash the order dated 8.3.2011 passed by the Additional Commissioner, Grade-I, Commercial Taxes under Entry Tax Act for the same assessment years, extending the period of limitation. By Writ Petition No. 409 of 2011 the petitioner has prayed for a writ of mandamus or prohibition restraining and prohibiting the Deputy Commissioner (Assessment), Sector-11, Commercial Taxes, Agra from proceeding with re-assessment procee....
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.... of the, 'Gas Sale Contract'. The buyers disputed the tampering of the meter. They also disputed that the gas was stolen by them. 6. The GAIL on the advise of Solicitor General of India, raised the invoices in respect of the quantity, which was alleged to be stolen by the buyers on the tampering of the meters. The invoice also included the penalty in terms of 'Gas Sale Contract'. Only one of such customer accepted the receipt of the gas. The remaining 12 customers neither accepted the tampering, nor the delivery of unmeasured gas. They have not paid the price of either the supply of the gas, nor have admitted the gas to be drawn unauthorizedly by tampering of the meter. 7. In the arbitration proceedings in respect of two buyers namely....
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....has been raised by the petitioner in respect of the quantity of the gas, hence it amounts to sale. On the basis of the order extending the limitation the Deputy Commissioner, Commercial Tax has issued notices for assessment years 2004-05 and 2005-06 under the UP Trade Tax Act for making re-assessment on the ground that in respect of the gas, which was stolen and for which the invoice was raised for Rs. 15, 88, 35, 715/- in the assessment year 2004-2005, and Rs. 10, 36, 58, 105/- in the assessment year 2005-2006, the petitioner is liable to be taxed and to be re-assessed under Section 21 of the Act. 10. Shri Bharat Ji Agrawqal submits that under Section 2 (h) of the UP Trade Tax Act the sale is defined:- " (h) 'Sale' with its grammatic....
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....e ground that the authority has no jurisdiction to extend limitation and issue notice for reassessment. 13. Shri S.P. Kesarwani appearing for the department submits that re-assessment can be made, if the competent authority believes the existence of such facts, on which the income can be said to have escaped assessment. The existence of such belief, is to be in good faith. This sufficiency of the evidence on the ground of such belief cannot be challenged at this stage. He relies upon observations of the Supreme Court in Commissioner of Sales Tax vs. Bhagwan Industries AIR 1973 SC 370 (para-9), to such effect. 14. In the present case, prima facie we find that under the 'Gas Sale Contract', the GAIL was supplying gas to the buyers. The ....
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....intained by the buyers at no risk and cost. The unmeasured supply of gas on account of tempering of the meter cannot at this stage, be treated to be theft, nor such allegation was accepted by the Arbitrator in the award. The GAIL was not required to raise bills, if it treated the supplies to be theft. The GAIL has also challenged the award for payment of the amount raised under the invoice. 16. A person is sought to have committed theft, as defined under Section 378 of the Indian Penal Code 1860, when he intends to take dishonestly any movable property out of the possession of any person without that person's consent, or moves that property in order to such taking. In the present case the dishonest extraction of the gas by tampering the ....