TaxTMI 
TaxTMI 
2013 (9) TMI 293
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....rder was passed by the Deputy Commissioner (Assessment), Jhansi on 31st March, 2009 accepting the books of account and the disclosed turn over of the petitioner as asseessee, in respect of Cement sold and sent both by rail as well as by trucks. The petitioner had spent an amount of Rs.21,39,96,022/-, on account of freight, which was allegedly charged separately from the customers. The assessing authority had accepted the turn over excluding the freight for the purposes of levy of tax on the sale of Cement. While calculating the taxable turn over the assessing authority had added the entire amount of freight of Rs.21,39,96,022/- and while denying the claim of exemption of freight, the tax was levied on it at 12%. 5. Aggrieved by the assessment order dated 31.3.2009 the petitioner had filed an appeal under Section 9 of the U.P. Trade Tax Act. In the proceedings of appeal the petitioner produced original sale invoices. The appellate authority allowed the assessing authority an opportunity to comment on the original sale invoices. The appellate authority noticed that there was no justification for imposing tax on the amount of freight, which was separately charged. The Joint Commiss....
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....med the exemption of commercial tax on the entire amount of freight. They pleaded that at the time of assessment they had produced the account books and verified the entire sale of cement and the expenses of freight both by transport through road and rail. During the course of hearing the trader accepted that the cement dispatched by the company to its various depots by rail, the freight thereafter was borne by either the depot or by the company and thereafter it was realized from the consumers. They, however, did not produce the account books with regard to the loading, unloading, the details of the freight charges and the manner such charges were recovered from the consumers. 9. The Addl. Commissioner thereafter observed after considering the affidavit and the explanation furnished by the petitioner that the trader did not from the stage of assessment to the stage of hearing under Section 21 (2) produce either the account books or any evidence regarding freight and the manner in which the amount of freight has been adjusted. The records produced by the petitioner would show that he had shown in his returns, and in the previous hearing that the goods were delivered ex-factory a....
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....ould warrant the formation of the belief. He has relied upon Aryaverth Chawal Udyog v. State of U.P., 2008 UPTC 881, in submitting that there is no justification, in the case for initiating the reassessment proceedings. He has also relied upon Apolo Tyres v. State of U.P. & Ors., 2010 (42) NTN 169 in which it was held that on the same material, which was in existence at the time of original assessment, reassessment proceedings cannot be initiated. There has to be fresh material on the basis of which belief may be formed. He submits that entire records were produced before the assessing authority. In item no.10 of the details of turn over, given in the assessment order the petitioner had claimed exemption on the entire amount of freight, which was disclosed as part of turn over and on which exemption was sought. The assessing officer did not accept the exemption on freight on the grounds that inspite of asking the petitioner did not produce the challen/ delivery challan/ invoices. The first appellate authority accepted the claim for exemption subject to verification of the bills, which were produced in original and of which the copies were kept on record, and observed that the compa....
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....he High Court that the entire account books were produced. The account books relating to freight and the manner in which the freight was charged and realised from the consumers was never produced before any authority. The petitioner relied upon certain judgments and suppressed the account books. Shri Kesarwani submits that the petitioner had cleverly withheld the relevant facts of the manner and method of charging freight. The facts came to the light only after examining the service tax returns. 14. We have considered the arguments and the reasons recorded by the Addl. Commissioner in the order of giving the permission for reassessment under Section 21 (2). The petitioner has apart from making arguments, has not relied on any such material to show that the petitioner had disclosed the manner and method of charging freight, before any of the authorities from the stage of assessment to the order authorising reassessment. Infact the assessing authority had rejected the request for exempting the freight on the ground that the petitioner had not disclosed the challan/ delivery challan/ invoices. Under Section 2 (i) of the Act the cost of freight or delivery cost is not to be included....