TaxTMI 
TaxTMI 
2019 (8) TMI 1309
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....der and engaged in the business of construction and sale of flats to the interested persons/allottee, after purchasing the land from the Development Authorities and developed the land so purchased. The petitioner had not entered into any tripartite agreement between the petitioner and the purchaser, as the petitioner developed the land after purchasing the same from the Development Authorities. In other words, the petitioner is a sole owner of the land on which the flats were constructed. According to the petitioner, the ownership of the flats continues with it from the time of construction till the execution of registered sale deed in favour of the interested person/prospective buyers and as such, the petitioner does not fall within the category of works contract. The original assessment order was passed for the year in dispute on 30.04.2013. The Assessing Authority, after considering all the materials available on record as well as the judgement of the Apex Court in the case of K. Raheja Development Corporation Vs. State of Karnataka, reported in (2005) 5 SCC 162, letter of allotment, etc., came to the conclusion that there is no transfer of any material in execution of works ....
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....ssment Years 2004-05 and 2005-06, the Assessing Authority had levied tax on the petitioner treating it as a dealer and imposed tax on the material used in the execution of works contract on the basis of the judgement of the Apex Court in the case of K. Raheja Development Corporation (supra). Against the said order, Writ Petition No. 997 of 2006 and Writ Petition No. 1238 of 2006 were filed before this Court, which were allowed on 23.03.2007. Against the said order, the State went in SLP before the Apex Court. The Apex Court, vide its order dated 30.12.2007, allowed the appeal filed by the State only on the limited ground that the writ petition against the assessment order was not maintainable. The petitioner should have filed the appeal as provided under the Act. In pursuance of the order of the Apex Court, the petitioner filed an appeal, the appellate authority allowed the appeal and remanded the matter back to the Assessing Authority for deciding afresh by order dated 20.10.2009. Against the aforesaid order, the petitioner preferred Second Appeal Nos. 231 and 232 of 2010 before the Commercial Tax Tribunal, Noida Bench, Noida, which were allowed vide order dated 11.06.2010. ....
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.....A. Firm Vs. Commissioner of Income-tax 1991 (2) SCC 558 the Court said as under: "If a conscious application of mind is made to the relevant facts and material available or existing at the relevant point of time while making the assessment and again a different or divergent view is reached, it would tantamount to "change of opinion". If an assessing authority forms an opinion during the original assessment proceedings on the basis of material facts and subsequently finds it to be erroneous; it is not a valid reason under the law for reassessment." 9. In the present case, entire material which is now being taken into consideration for the purpose of impugned notice and approval granted was available before Assessing Authority and after having considered the same, assessment was made. Now authorities, taking a different view, have issued impugned notice. Thus, it is a clear case of change of opinion, hence reassessment is not permissible in view of aforesaid exposition of law." It is further argued that in the impugned order, the respondent has relied upon a survey report dated 22.09.2009 submitted by the SIB Unit, for which no notice, whatsoever, was given by t....
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....sons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the Assessing Officer cannot be supplemented by filing an affidavit or making an oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches the court, on the strength of the affidavit or oral submissions advanced." Learned counsel for the petitioner further submitted that even assuming, without admitting, that the survey report dated 22.09.2009 was to be taken into account, but the same were already considered by the then Assessing Authority while passing the original assessment order. Therefore, there is no fresh or tangible material or information to form a reasonable belief to have a live-link with the information of belief that a turnover has escaped assessment, which could legally be permitted for initiation of reassessment proceedings under section 29(7) of the VAT Act. At best, it can be said that it is only a change of opinion, which is not permissible under the Act. In support of this submissions, learned counsel for the petitioner has relied upon the judgem....
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..... State of U.P. and another has further elaborated- From a perusal of the aforesaid, it is apparently clear that the words "reason to believe" in Section 21 of the U.P. Trade Tax Act conveys that there must be some rational basis for the assessing authority to form a belief that the whole or any party of the turnover of a dealer has for any reasons escaped assessment. Such reason or reasonable ground to believe that the whole or any part of the turnover had escaped assessment must be germane to the formation of the believe regarding escaped assessment. Such reasons or grounds must have a nexus with the formation of the belief. The approach has to be practical and not pedantic." In absence of any material it was not open to the authorities to assume existence of such facts for the purpose of acquiring jurisdiction and to later, in the course of reassessment proceedings to conduct an inquiry as to its existence or otherwise. The Supreme Court in the case of Arun Kumar & Ors Vs. Union of India & Ors (2007) 1 SCC 732 has categorically held : 74. A "jurisdictional fact" is a fact which must exist before a court, tribunal or an authority assumes jurisdiction ov....
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....atisfactory reply to the same as well. Even if the discovery of an inadvertent mistake or nonapplication of mind during the assessment would not be justifiable ground for re-initiating proceeding under section 29(7) of the Act. In support of his submission, he has relied upon the judgement of the Apex Court in State of U.P. Vs. Arayaverth Chawal Udyog Limited (2015) 17 SCC 324; wherein, in paragraph nos. 30 & 31, the Apex Court has held as under:- "30. 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 assessing authority. Discovery of an inadvertent mistake or non-application of mind during assessment would not be a justified ground to reinitiate proceedings Under Section 21(1) of the Act on the basis of change in subjective opinion (Commissioner of Income-tax v. Dinesh Chandra H. Shah: [1972] 3 SCC 231 : and Income-tax Officer v. Nawab Mir Barkat Ali Khan Bahadur: [1975] 4 SCC 360. 31. The above observations regarding the import of the words "reason to believe" though made in the context of different statutes have, in our opinion, equ....
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.... was allowed on 23.03.2007, against the said judgement, the State filed Special Leave Petition before the Apex Court and the Apex Court allowed the Special Leave Petition on the ground that against the assessment order, writ petition was not maintainable. The petitioner contested the matter through the remedies provided under the Act and the Tribunal, by its order dated 11.06.2010, after recording a finding of fact, came to the conclusion that the petitioner was not liable for payment of tax on the material used in the execution of works contract, against which the Revenue preferred a Trade Tax Revision, which was dismissed by this Court on 20.09.2012 reported in 2012 VSTI (15) B-923. It has been accepted, at the Bar, that against the order dated 20.09.2012 passed by this Court in CCT Vs. S/s Assotech Ralty Pvt. Ltd 2012 VSTI (15) B-923, no appeal has been preferred before the Apex Court. The Department has accepted the order passed by this Court. Once an order, which has been passed and has been confirmed by this Court under the provision of the Act, the case in hand, then in absence of any new material being brought on record, the completed assessment should not have ....