TaxTMI 
TaxTMI 
2010 (3) TMI 1008
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....in the circumstances of the case. (5) To award costs throughout to the petitioner. Brief facts giving rise to this writ petition, according to the petitioner, are that the petitioner is a public limited company incorporated under the Indian Companies Act having its registered office at M-5A, Connaught Circus, New Delhi and the petitioner is registered under the Uttarakhand VAT Act as well as under the Central Sales Tax Act. The petitioner is carrying on sale of various goods including processed and preserved vegetable, fruits apart from milk powder, baby food, etc. The petitioner has been regularly filing its return and depositing tax in respect of sale of various goods, which are applicable under Schedule of rate prescribed under section 4 of the Uttarakhand VAT Act, 2005 (for short "the Act"). A show-cause notice was issued on June 19, 2009 by the assessing authority on account of circular dated May 30, 2009, which was issued by the Commissioner of Tax, Uttarakhand, copy of which was sent to all the Additional Commissioners and all Joint Commissioners with a direction that a copy of the circular be sent to all the assessing authorities and all other lower authorities. ....
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....t is stated in the counter-affidavit that the petitioner has not deposited proper tax in respect of sale of tomato sauce. It is also stated that the State Government has extended the limitation for assessment for the year 2005-06 up to September 30, 2009 by notification dated March 3, 2009, therefore, the show-cause notice issued by respondent No. 3 and the assessment order dated July 8, 2009 is well within limitation. It is also stated that the Commissioner of Taxes has given reasons for non-inclusion of tomato sauce in entry No. 6 of Schedule II(B) of the Act and the tomato sauce is not covered under any item specified in the said entry. It is further stated that the petitioner has intended to seek extension of the scope of the entry, which is not permissible under law. The Legislature had deliberately given certain specific forms and only those forms are entitled to be taxed at lower rate of tax. Tomato sauce is not a processed vegetable. It is not a paste, which can be used in place of tomato as a substitute of tomato and is beyond the scope of entry No. 6 of Schedule II(B) of the Act. Tomato sauce though prepared from tomato, is not sold as tomato and the form in which it is s....
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.... in sealed containers or otherwise)." The learned counsel for the petitioner has vehemently contended that all items of vegetables or fruits that undergo any form of processing would deserve to be classified as items of processed vegetables or fruits. The learned counsel for the petitioner has further contended that the Ministry of Food Processing Industry has specifically mentioned that food processing sector includes the fruit and vegetable processing also and the major product processed out therefrom includes not only jam, jellies, squash but also the sauces. In support of his contention, the learned counsel has placed reliance upon the Division Bench judgment rendered by the Gauhati High Court in the case of Pepsico India Holdings Pvt. Ltd. v. State of Assam [2009] 25 VST 41. In paragraph 21, the following observations have been made (at page 49): "All items of vegetables or fruits that undergo any form of processing so long such items have an acceptable degree of similarity, in our considered opinion, would deserve to be classified as items of processed vegetables or fruits, as may be. A person buying jam or jelly or pickle does not buy such items either as a fruit or ve....
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....ial dehydration of fruit and vegetables, radiation preservation of fruits and vegetables, manufacture of fruit or vegetable juices and their concentrates, squashes and powder, manufacture of sauces, jams, jellies and marmalades, canning of fruits and vegetables, manufacture of potato flour and meals and prepared meals of vegetables and preservation of fruit and vegetables are covered under processing and preserving of fruits and vegetables. Therefore, from any stretch of imagination, it cannot be said that tomato sauce would be excluded from the ambit of processing and preserving of fruit and vegetables merely because the Legislature has not included the word "sauce" in entry 6. In my opinion, if it had been the intention of the Legislature to exclude the vegetable and fruit sauce from the ambit of entry 6, the Legislature must have said so in the description of goods given in Schedule II(B) of the Act. Secondly, where the Legislature has intended to exclude any particular item from the ambit of the entries of Schedule II(B) of the Act, there has been specific mention to that effect as to what items are not included in the entries. Thirdly, the learned counsel for the petitio....