TaxTMI 
TaxTMI 
2010 (2) TMI 1107
X X X X Extracts X X X X
X X X X Extracts X X X X
....d with its other items. The present writ petition is with respect to the assessment years 1990-91, 1991-92, 1992-93 and 1993-94. It is evident that these periods were prior to the date of bifurcation of the erstwhile State of Bihar in terms of the Bihar Reorganisation Act, 2000. The petitioner had been submitting returns at various places in the undivided State of Bihar including Jamshedpur and Patna. It had submitted returns for the said four periods on the footing that it was liable to be taxed at the rate of 8 per cent under the provisions of the Bihar Finance Act, 1981 (hereinafter referred to as, "the Act"). The learned assessing officer did not agree with the petitioner and instead assessed the petitioner-company to tax at the rate of 12 per cent, treating the vacuum cleaner to be "electrical goods" within the meaning of entry No. 81 of the Sales Tax Notification No. 1026/77-14541, dated December 26, 1977, issued under section 12 of the Act. In terms of the notification, tax was leviable at the rate of 11 per cent up to March 31, 1982, and was raised to 12 per cent with effect from April 1, 1982. It is evident that the four periods in question are after April 1, 1982. The fou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ears 1987-88 to 1990-91, the Jamshedpur Circle has taxed the petitioner at the rate of 12 per cent, which was set aside by the Ranchi Bench of the Patna High Court in the case of Eureka Forbes Ltd. v. State of Bihar reported in [2000] 119 STC 460. He submits in the same vein that consistency is the hallmark of justicedelivery system. Why should, therefore, be a departure for the four periods in question, and that too only by the Patna Circle? He relies on the following judgments: (i) Division Bench judgment of the Delhi High Court in Commissioner of Income-tax v. A.R.J. Security Printers reported in [2003] 264 ITR 276; (ii) Radhasoami Satsang v. Commissioner of Income-Tax reported in [1992] 193 ITR 321 (SC); (iii) Judgment dated October 13, 2009 of the present Bench in Misc. Appeal No. 145 of 2004 (Dr. Narendra Prasad v. Commissioner of Incometax I, Patna and analogous appeals,) reported in [2010] 322 ITR 171 (Patna); [2010] 1 BBCJ 400. He next submits that the petitioner's item is "machinery" within the meaning of entry No. 33, of the Government notification dated December 26, 1977, under the provisions of section 11 of the Act. In other words, in his submission....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s as well as the taxing authorities. We have perused the materials on record and considered the submissions of learned counsel for the parties. The learned Government counsel has strenuously contended that this writ petition is not maintainable. On a perusal of paragraph 1 of the writ petition set out hereinabove, we are of the view that the dominant relief prayed for in the present proceeding is to set aside the order of the Tribunal. We are proceeding on the footing that a review application as well as reference application at the instance of the petitioner is pending before the Tribunal. Section 47 of the Act provides for a review application and is reproduced hereinbelow: "47. Review.-Subject to such rules as may be made by the State Government under this part any authority appointed under section 9 or the Tribunal may review any order passed, by it, if such review is, in the opinion of the said authority or Tribunal, as the case may be, necessary on account of a mistake which is apparent from the record: Provided that no such review, if it has the effect of enhancing the tax or penalty or both, or of reducing a refund shall be made unless the said authority or the Tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l be levied at more than one point or on all the points, the amount of sales tax paid at each preceding stage of sale shall be adjusted against the amount of tax payable at each subsequent stage of sale in the prescribed manner. (4) Where no specification is made in respect of any goods or class or description of goods under sub-section (1), the sales tax shall be levied at the point of sale by a registered dealer to a person other than a registered dealer. Each preceding sale by a registered dealer to another registered dealer in whose registration certificate such goods or class or description of goods are specified as being required for re-sale by him shall not be levied to tax, if the selling dealer produces a declaration from the buying dealer in the prescribed form and manner to the authority prescribed under section 17. 12.. Rate of tax.-(1) The sales tax or purchase tax payable by a dealer under section 3 or 4 shall be levied at the rate of eight percentum of his taxable turnover: Provided that the State Government may, from time to time, by notification and subject to such conditions and restrictions as it may impose fix higher rate not exceeding twenty-five per c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e proviso to section 12(1) of the Act. On a perusal of the different entries therein, we are of the view that the product in question is covered by entry 81 and is reproduced hereinbelow for the facility of quick reference: "81. Electrical goods, instruments, apparatus and appliances including electric fans and lighting bulbs, electric earthware and porcelain and all other accessories excluding electric motor, dry cell batteries, torch, torch bulbs, exhaust fans, air circulators, and spare parts and accessories, electric heaters of all varieties." There is no other entry in this notification which competes with entry 81 for its application in the present case. Therefore, we are of the view that there is no doubt or difficulty in concluding that the petitioner's product is covered by entry 81 of the notification under section 12. In other words, there is no rival entry which calls for determination in the present case. The position would have been different had any doubt or difficulty arisen about the applicability of any other entry, in the absence of which there is no doubt or difficulty in our minds that entry 81 of the notification under section 12 is attracted. Entry ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e to a definite conclusion and hold: (i) A mere change of opinion and/or second thought by any authority on the same set of facts and materials on record would not constitute 'information' under section 19(1) of the Bihar Finance Act, 1981; (ii) There must be some material and/or facts on the record which had not been taken into account at the time of original assessment, to make reassessment in terms with section 19(1) of the Bihar Finance Act, 1981; and (iii) 'Audit report' cannot constitute 'an information', as enumerated under section 19(1) of the Bihar Finance Act, 1981, for the purpose of reopening of assessment. . . . 16.. In this case it is an admitted fact that the sole document of reopening of assessment by the respondents is the audit report. Further the audit party merely gave its opinion as to whether the vacuum cleaner is a 'machinery' and/or 'electrical goods'. For the said reason I hold that there is no information and/or new material that was available before the respondents to reopen the matter relating to the assessment for the period in question and further the audit report is mere a change and/or second ....