TaxTMI 
TaxTMI 
2019 (2) TMI 1882
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....des such as Harpic and Lizol, Drugs and medicines including Disprin, Dettol etc. The petitioner has obtained registration under the UPVAT Act, bearing TIN No. 09132601751. 4. It has been averred that while passing the original assessment order dated 8.3.2013 the assessing authority has righly imposed the tax on the goods in question i.e. sale of Harpic and Mortein coil at the rate of 4% -5% treating the same as pesticide. It is further averred that the reassessment proceeding has been initiated under Section 29 (7) of UPVAT Act for which notice was issued, the petitioner has submitted the detailed reply bringing on record that items sold by it, have righly been imposed tax at the rate of 4 % as the commodity in question has been decided not only by Full Bench of Trade Tax Tribunal, Lucknow Bench in the case of Neha Trading, but also various other High Courts have treated Harpic and Mortein coil as pesticides. The proceeding initiated against the petitioner treating the items in question classifiable as under Schedule V of UPVAT Act at the rate of 12.5 %, is not correct. Being dissatisfied with the reply the impugned order dated 24.11.2017 has been passed extend....
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.... toilets (additional function) and other porcelain surfaces. 9. He further submitted that Government recognizes Harpic as disinfectants. 10. Harpic being disinfectant is considered as a ''drug' under Section 3(b) of the Drugs and Cosmetics Act, 1940 read with Rule 126 of the Drugs & Cosmetics Rules. Section 3 (b) (ii) of D&C Act defines drug to include such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette. In terms of Section 3 (b) (ii) of the D&C Act, Government of India is required to notify such goods and Government of India by its Notification No. S.O. 1335 dated 02.06.1961 read with Notification No. X. 11013/2/72-D dated 09.07.1975 has notified "Disinfectant fluids from synthetic or naturally occurring substances by virtue of their composition possessing disinfectant properties or with claim to possess disinfectant properties" as drugs. 11. Learned counsel for th....
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....the Revenue unless demonstrated to be erroneous, cannot be lightly brushed aside. The Revenue has not made any attempt to discredit or to rebut the genuineness and correctness of the report of the Government, Chemical Examiner and Chief Chemist. Thus, the reports are to be accepted along with other documentary evidence in the form of classification issued by the Department regarding use of wetting agents in the textile industries to hold that the product Penetrator 4893 possessed surface active properties and, therefore, is covered by Exemption Notification No. 101/66 dated 17­6­1966 as amended from time to time." 73. In this case also, the report of the chemical examiner is in favour of the assessee. Furthermore, in a case of this nature, where the Revenue itself has been holding the assessee to be a producer of a pharmaceutical product, the burden would be on the Revenue to establish that the goods cease to fall under a given entry. For the said purpose, no material was placed by the Revenue which was imperative." 14. Learned counsel for the petitioner further submits that the classification of tax entries worldwide are based on Harmonized System of Nomenclatu....
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....n is the insecticide d-trans allethrin. This Court on a consideration of the various judgements of the Hon'ble Supreme Court as well as the High Courts has held that Mosquito Coils including Mortein Coils would fall within the Entry "Pesticides and Insecticides" as the chemical composition used in the manufacturing of Mosquito Coil is allethrin which is an insecticide. This Hon'ble Court in Knight Queen Industries Vs. State of UP, 2006 (145) STC 226 has held as under: 19. The principles that emerge from the decisions referred to above are that while interpreting statues like the Trade Tax Act, the primary object of which is to raise revenue and for which purpose various products are differently classified, resort should not be had to the scientific and technical meaning of the terms and expressions used but to their popular meaning, that is to say the meaning attached to them by those using the product; that merely because the percentage of medicament in a product is less does not also ipso facto mean that the product is not a medicament; that the main criterion for determining classification is normally the use it is put to by the customers who use it ....
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....cides. 26. These facts coupled with the Principles enunciated in the decisions referred to above leave us in no doubt that the products sold by the petitioners are basically in the categories of 'insecticides' particularly in the absence of any indication in the Notification in question. 27. It has, however, been urged by Sri Kesarwani, learned Counsel for the Revenue that the petitioner applied for registration under Section 8A of the Act ''Form 14" wherein in column 7 it has been mentioned that the commodity traded is "Mosquito Repellent Mats/Coils etc.". Similarly under Section 7 of the Central Sales Tax Act, 1956, the petitioner applied for registration in Form-A wherein in column 16 it has been mentioned that the purchase and sales of "Mosquito Repellent Mats/Goils etc". 28. We are, however, unable to persuade ourselves to hold that merely because the petitioners have at various stages contended that the product is described or commonly traded as 'Mosquito Repellant' it should not fall in the category of insecticides'. We would have accepted such a contention if there was separate or specific exclusion en....
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....uestion is covered under Schedule-II, Part A under Entry 20 of UPVAT Act. 22. Learned counsel for the petitioner further submits that in the case of M/s Reckitt Benckiser (India) Ltd., itself on whose behalf the petitioner is selling the goods in the State of Uttar Pradesh, various High Courts have decided the issue that Harpic and Mortein coil as insecticide and hence, no higher rate of tax can be levied and therefore re-assessment proceeding should be dropped. 23. The counsel for the petitioner further submitsthat re-assemment proceeding under Section 29(7) of the Act, has been initiated illegally as there is no new material on the basis of which the impugned order could be passed. There is as such no cogent reason warranting invocation of powers under Section 29 (7) of the Act by respondent-3. 24. The counsel for the petitioner has relied upon various judgements passed under Section 21 (2) of UP Trade Tax Act, which is analogous of Section 29 (7) of UPVAT Act. Few of the references are as under; Bharat Heavy Electricals Limited Vs. State of UP and others, 2017 UPTC 205, Rathi Industries Ltd. Vs. State of UP, 2014 UPTC 960, Varun Beverages Ltd. Vs....
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....t A, Entry 20 of UPVAT Act provides levy of 4%-5% tax on the sale of goods mentioned therein which includes all all kind of insecticides and pesticides. Schedule-V provides levy of tax at the rate of 12% on those goods which are not mentioned in any of the Schedule-I,II, III, IV. 30. The High Court of Andhra Pradesh in Tax Revision No. 10 of 2007 (M/s Reckitt Benckiser (India) Ltd. Vs. State of Andra Pradesh held Harpic as insecticide/pesticides. The relevant part is quoted below: 1. M/s. Reckitt Benckiser (India) Limited (hereafter, the manufacturer) is engaged in the manufacture and sale of Lizol (floor cleaner), Harpic (toilet cleaner) and Mortein mosquito repellents. Whether these goods are exigible to value added tax @ 4% under entry 20 of Schedule IV to the Andhra Pradesh Value Added Tax, 2005 (the VAT Act)? This question falls for consideration in the tax revision case filed under Section 34 of the VAT Act and in all the Writ Petitions filed under Article 226 of the Constitution of India. ...... 4. The Tax Revision Case, in the circumstances, against the order of the STAT, would not lie. The manufacturer, therefore, filed two Writ Petition....
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....cts including insecticides such as Mortein mosquito coils, mats, vaporizers and disinfectants like "Harpic" and "Lizol" dispirit and Dettol antiseptic liquid, cherry blossom shoe polish, etc., has challenged the assessment of the respondents authorities of the products of Harpic, Lizol and Dettol at the higher rate of these products at 12.5 per cent VAT charges classifying under the residual items under entry No. 1 of the Fifth Schedule of the Assam Value Added Tax Act, 2003 (hereinafter referred to as, "the Assam VAT Act"), contrary to the claim of the petitioner that the petitioner company would be liable to pay only at rate of four per cent as these items are covered by specific entries provided under Schedule to the said Act at the said rate. As all these writ petitions challenge similar orders and under similar factsituations, these writ petitions are heard together and disposed of by this common judgment. 2. According to the petitioner, the petitioner had been paying taxes at the rate of four per cent in respect of the aforesaid products as these (Harpic and Lizol) are covered under entry No. 19 of Part A of the Second Schedule to the Assam Value Added Tax Act ....
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....he aforesaid contention of the petitioner that Harpic is a disinfectant was not doubted or contradicted by the Revenue. Similarly, the primarily disinfectant quality of "Lizol", supported by expert opinion also remained unrebutted. 24 . The petitioner also contended that similarly, "Lizol" has the active ingredient benzalkonium chloride solution I.P. and other ingredients fragrance-BBA P 2062 M, propylene glyeel LP, sodium bicarbonate I.P, tartazine yellow, fatty alcohol ethoxylate, lsoprpyl alcohol I.P. and other chemicals, used for disinfecting floor, cooking platform, sink and similar hard surfaces. It is effective in killing microorganisms like S. Aurus E. Coli (MTCC 1687) Pseudomonas Aeruginosa (MTCC-741) which are generally found on hard surfaces like floors that cause urinary tract infections, respiratory system infections, dermatitis, soft tissue infections, bone and joint infections, infections to patients with severe burns, cancer and AIDS, etc. 25. Accordingly, it was submitted that the petitioner, through the product labels, had been publicly and commercially representing "Harpic" and "Lizol" as disinfectants and the consumers purchase the produc....
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....on Wing of the revenue wherein, it was noticed that the assessee is manufacturing/producing Anti- Mosquitoes devices and "repellents", "Dettol Soap", "Brasso", "Harpic Toilet Cleaner", "Lizol Floor Cleaner", "Manson Polish", "Robin Blue", "Ret Kill", "Teenapole", Drugs & Medicines etc. and during the course of survey and further investigation material was collected on the basis whereof the Assessing Officer noticed that the assessee is selling Electrically Operated Anti-mosquito devices & repellents, Electrically Operated Anti-Mosquito Mat, AntiMosquito Coil, Rat Kill, "Harpic", "Lizol", "Dettol" Antiseptic on which VAT @ 4% was being collected and paid and the Assessing Officer was prima-facie of the opinion that the claim of the assessee that it falls in Schedule-IV of the R.V.A.T. Act is not correct rather it falls in the residuary Schedule on which rate prescribed is 12.5% which was required to be paid and not 4% as claimed by the assessee. ... ...... 7 . Learned counsel for the assessee contended that the two products namely; "Harpic" & "Lizol" are classifiable under Entry 21 or Entry 29 of Schedule IV of the R.V.A.T. Act. and the same being used as Insectici....
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....ical Examiner and Chief Chemist. Thus, the reports are to be accepted along with other documentary evidence in the form of classification issued by the Department regarding use of wetting agents in the textile industries to hold that the product Penetrator 4893 possessed surface active properties and, therefore, is covered by Exemption Notification No. 101/66 dated 17­6­1966 as amended from time to time." 73. In this case also, the report of the chemical examiner is in favour of the assessee. Furthermore, in a case of this nature, where the Revenue itself has been holding the assessee to be a producer of a pharmaceutical product, the burden would be on the Revenue to establish that the goods cease to fall under a given entry. For the said purpose, no material was placed by the Revenue which was imperative." 21. The Apex Court in the case of Bharat Sanchar Nigam Limited and Another v. Union of India and Others MANU/SC/1091/2006 : (2006) 3 SCC 1 has also held that if an entry has been interpreted consistently in a particular manner for several assessment years ordinarily it would not be permissible for the revenue to depart therefrom unless there is a ....
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....ly by term 'pesticides'. 6. 'Pesticide' has been defined in Butterworths Medical Dictionary, 2nd Edn., as "a comprehensive word to include substances that will kill any form of pests, e.g., insects, rodents and bacteria". The term 'pesticide' includes a large variety of compounds of diverse chemical nature and biological activity grouped together usually on the basis of what kind of pests they are used to destroy or eliminate. Under the US Federal Environment Pesticide Control Act, the term 'pesticide' has been defined to include "(1) any substance ormixture of substances intended for preventing, destroying, repelling, or mitigating any pest, insect, rodent, nematode, fungus, weed, other forms of terrestrial or aquatic plants or other forms of animal life, e.g., viruses, bacteria, or other micro­organisms, which the administrator declares to be a pest and (2) any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant" (Pesticides in the Indian Environment, by P.K. Gupta p.2). 7 . 'Fungicide' inhibits growth or destroys fungi pathogenic to man or other animals or inanimate s....
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....ppears no justification to exclude it. The test of strict construction of exemption notification applies at the entry, that is, whether a particular goods is capable of falling in one or the other category but once it falls then the exemption notification has to be construed broadly and widely. Each of the words insecticides, pesticides, fungicides or weedicides are understood both in the technical and common parlance as having broad meaning. Therefore, if any goods or items satisfy the test of being covered in either of the expression, then it is entitled to exemption. The broad and basic characteristic for exemption under the notification is that the goods must have the property of killing germs and bacteria, insects or pests and it should be understood in the common parlance as well as being covered in one of the broad categories mentioned in the notification. Since the goods produced by the appellant are capable of killing bacteria and fungi which too, is covered in the expressions 'pesticide' and 'fungicide' there appears no reason to exclude the goods from the aforesaid notification." This Judgment supports the claim of the assessee and in my view, sq....
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....It is now well settled principle of law that when two views are possible, the one which favours assessee should be adopted. In Mauri Yeast India Private Limited v. State of Uttar Pradesh, MANU/SC/7514/2008 : (2008) 5 SCC 680.: "46. It is now a well­settled principle of law that when two views are possible, one which favours the assessee should be adopted.(See Bihar 4: MANU/SC/0642/1997 : (1997) 5 SCC 289" Here, in the present case, there are two possible view: either to take the products Harpic and Lizol to be merely stain remover and cleansing agents or as disinfectants and in respect of Dettol, to treat it as a mere toilet preparation or a drug or medicine. Since there are sufficient materials to consider Harpic and Lizol as disinfectants and accordingly, as pesticides, and Dettol as medicament, following the aforesaid principle of law, it can be held that the said products are pesticides and drugs respectively. 39 . In view of the aforesaid possible views taken to consider Harpic and Lizol as pesticides and Dettol as a drug, based on material as discussed above, it will not be appropriate to deny their qualification under the aforesaid Entry Nos. 1....
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.... 26 . The Apex Court in the case of Ambey Laboratories v. Collector (supra) was considering the case of "Liquid Phenyle" an identical product and, held in a case of Central Excise Tariff Act, 1985 that "Liquid Phenyle" is disinfectant. 27. The Division Bench of Andhra Pradesh High Court in the case of (assessee) M/s. Reckitt Benckiser (India) Ltd., v. State of Andhra Pradesh (supra) was also considering case under Andhra Pradesh VAT Act and vide judgment dt. 13.06.2013, of the same product being "Mortein", "Lizol" & "Harpic" while the claim of the assessee was that it falls under Entry 20 of Schedule (iv) of the Andhra Pradesh Value Added Tax payable @ 4% but the claim of the revenue was that it is exigible to tax in Schedule (V) of the Act under rate of 12.5% and taking into consideration the judgment rendered by the Apex Court in the Bombay Chemical Pvt. Ltd. observed in the said judgment which reads as under:- "We may passingly mention that Section 18 of Drugs Act mandates a licence for manufacture, sale or distribution of any drug, cosmetic or medicine. The word "drug" is defined in Section 3(b) of the Drugs Act. It is inclusive definition. A plain re....
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....ex Court has dismissed the Special Appeal filed by the State of Andhra Pradesh against the judgement & order passed by the Andhra Pradesh High Court in S.L.P. No. 18473 of 2014 (State of A.P. Vs. M/s Reckitt Benchiser (India) Pvt. Ltd). 35. This Court in T.T.R. No. 91 of 2014 (supra), after a very detailed discussion, has held that Harpic sold by the manufacturer, i.e., M/s Reckitt Benckiser (India) Pvt. Ltd. is to be taxed @ 4%5%. 36. When a pointed question was put to the learned Special Counsel as to whether any special appeal before the Apex Court has been filed against the judgement & order dated 09.10.2018 passed by this Court, the answer was in negative. 37. The petitioner before this Court has been appointed as a Distributor of the manufacturer (i.e. Reckitt Benchiser India Pvt. Ltd) of Harpic and Mortein Coil, who had already approached not only this Court, but also other High Courts; the issue has been settled treating the same as "Pesticides". Furthermore, on the issue arising from the Andhra Pradesh High Court; the Andhra Pradesh High Court has held that Harpic to be taxed under the head "Pesticides". 38.....
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........ Per contra, learned counsel for the Assessee-Opposite Party has placed reliance of the judgments of the Apex Court as well as of the High Courts. Learned counsel for the assessee-Opposite Party has placed reliance of a judgment reported in (1995) Suppl. 2 SCC 646 in the case of the Bombay Chemicals Pvt. Ltd. v. Collector of Central Excise. ................. Learned counsel for the Assessee-Opposite Party submitted that the Revision has been filed by the Revenue against the Judgment dated 17.03.2013, passed by the Commercial Tribunal, Ghaziabad, who has allowed the Appeal filed by the assessee and has upheld and held that the classification of Harpic Disinfectant Toilet Cleaner ("Harpic") and Lizol Disinfectant Floor Cleaner ("Lizol") under Entry 20 of Part-A of Schedule II to the UPVAT Act as an "insecticide" or "pesticide" subject to VAT @ 4%/5% for Assessment Year 2008-09 and rejected the submission of the Revenue that Harpic and Lizol are classifiable under the residual entry (viz. Schedule V to the UPVAT Act and subject to VAT @ 12.5%/13.5%). The Tax Tribunal passed the Impugned Judgment based on the Judgment of the Supreme Court in B....
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....sp; Licenses issued for Harpic and Lizol by the Drug Controller, Government of India treating them as a disinfectant; (f) HSN Classification; (g) Technical and Dictionary meaning; and (h) common/commercial parlance etc. (taken note of by theHon'ble Supreme Court in Bombay Chemicals and by various High Courts (in paras 26 and 27 below). These principles have been recognized by the Supreme Court in Ponds India Ltd. v. Commissioner of Trade Tax, Lucknow (2008) 8 SCC 369. Based on such classification, the assessee-dealer had collected VAT @ 4%/5% and deposited VAT @ 4%/5% with the Revisionist. The monthly as well as annual returns of the assessee-dealer were accepted for years. Now, the Revisionist has questioned the classification adopted by the Department, claiming that Harpic and Lizol ought to be classified under the residual entry i.e. Schedule V to the UPVAT Act, which reads as: "Schedule V 1. All goods except goods mentioned or described in Schedule I, Schedule II, Schedule III and Schedule IV of this Act" Learned counsel for the assessee-dealers submitted that the active ingredient of ....
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....bsp; vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette. In terms of Section 3 (b) (ii) of the D&C Act, Government of India is required to notify such goods and Government of India by its Notification No. S.O. 1335 dated 02.06.1961 read with Notification No. X. 11013/2/72-D dated 09.07.1975 has notified "Disinfectant fluids from synthetic or naturally occurring substances by virtue of their composition possessing disinfectant properties or with claim to possess disinfectant properties" as drugs. Accordingly, for manufacture of Harpic and Lizol, a drug license is required to be obtained under D&C Act as it is a substance used for the destruction of vermin or insects which cause disease in human beings. The Respondent has accordingly obtained drug licence under the D&C Act. Even the labels of Harpic and Lizol are required to comply with the provisions of the Drugs & Cosmetics Rules framed under the Drugs and Cosmetics Act, 1940. Accordingly, the manufacturing license number as obtained is mentioned on the label along with other requirements such as batch num....
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....3. In this case also, the report of the chemical examiner is in favour of the assessee. Furthermore, in a case of this nature, where the Revenue itself has been holding the assessee to be a producer of a pharmaceutical product, the burden would be on the Revenue to establish that the goods cease to fall under a given entry. For the said purpose, no material was placed by the Revenue which was imperative." In support the learned counsel for the assessee-dealer placed the Dictionary meaning. Dictionary meaning including technical dictionaries are a relevant factor, as held in Ponds India by the Hon'ble Supreme Court and disinfectant is defined as: Webster Comprehensive Dictionary: "as a substance used to disinfect or to destroy the germs of infectious and contagious diseases". In the Concise Oxford Dictionary of Current English, "disinfectant" is defined as: "a commercially produced chemical liquid that destroys germs". In Encyclopedia Britannica, Volume 4, it is explained to mean: "any substance, such as creosote or alcohol, applied to inanimate objects to kill micro­organisms. Disinfectants and....
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.... hospitals for cleaning walls etc. or sterilizing instruments. They are also used in agriculture for disinfecting seeds. The group includes sanitisers bacteriostats and sterilisers." Further, even as per the HSN Explanatory Notes it is provided that "Disinfectants are used in hospitals for cleaning walls". Thus, such disinfectants may also be used for cleaning and merely because they are also used for cleaning, it cannot be said that it is not a disinfectant. Common parlance evidence: The primary function of Harpic and Lizol is to act as a disinfectant and in addition to disinfecting/killing bacteria and germs, they also clean. Consumers purchase Harpic and Lizol for their disinfectant properties and expect it to, also clean; therefore as a secondary use, ingredients for cleaning has been added to Harpic Lizol. To extend the logic of the Revisionist, products which have multiple attributes cannot be classified under the specific entry and has to be classified under the residual entry tablet for cold and fever, cannot be classified as a drug, since it has multiple attributes and has to be classified under the residual entry only. There would be th....
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....charge higher duty is foreign to a proper determination of this kind, the Court will be loath to say that it will not interfere. Re: Burden to prove classification in a particular entry is always on the Revenue: The burden to prove that a particular item falls under a specific entry is on the Revenue and not the assesse. The Hon'ble Supreme Court in Union of India Vs. Garware Nylons Ltd. 91996 (10) SCC 413); HPL Chemicals Vs. Commissioner of Central Excise) 2006 (5) SCC 208) and Voltas Ltd. Vs. State of Gujarat (2015 (7) SCC 527) has held that the burden of proof is on the taxing authority to demonstrate that a particular class of goods or item in question is taxable in the manner claimed by the Revenue and that a mere assertion in that regard is of no avail. The said principle has been so stated by the Hon'ble Supreme Court in para 26 of Voltas Ltd. which is extracted herein below for ease of reference: "Qua the issue of classification of goods to determine the chargeability thereof and the rates of levy applicable, it is no longer res integra that the burden of proof is on the taxing authority to demonstrate that a particular class of goods or i....
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.... for Harpic and Lizol, HSN Classification, technical and dictionary meaning, common/commercial parlance, etc. The Counsel appeared before the High Court contended that Harpic and Lizol are manufactured under license under the Drugs Act. The Special Counsel nextly submits that Harpic and Lizol are manufactured under licence under the Drugs Act; and they are therefore drugs falling under entry 88 but being toilet preparations stand excluded therefrom. A careful reading of entry 88(b) would show that Harpic and Lizol would be "odd men out" among the goods mentioned in the entry. The said entry speaks of only the products capable of being used as cosmetics and toilet preparations. Illustratively it mentions tooth pastes, tooth powders, cosmetics, toilet articles and soaps. It does not deal with toilet cleaner or floor cleaner used as disinfectants to kill bacteria and germs. When the language of the taxing entry is plain, it is not for the Courts, to introduce words to uphold the assessment. The High Court, however, has observed as follows: "We cannot read Harpic and Lizol as being included in toilet preparations to bring them under the excluded cate....
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....r IV and the Rules made thereunder. Harpic and Lizol are the products/goods sold even in general stores and on the counters of departmental stores. We therefore reject the submission of the State that Harpic and Lizol fall under entry 88 merely because they are manufactured under drug licence. In view of the aforesaid, the High Court reached at a conclusion and held that Harpic and Lizol are disinfectants capable of destroying germs and microorganisms like Escheriachia coli, Staphylocococcus aureus, Enterococcus hirae, Pseudomonas aeruginosa and Candida albicans etc. Being disinfectants they fall within the category of pesticides covered by entry 20 of IV Schedule. Against the aforesaid judgment of the Andhra Pradesh High Court dated 13 June 2012, a Special Leave Petition was filed by the department which was dismissed on the ground of delay. Similar issue was also considered by the Division Bench of the Guwahati High Court in case bearing Writ Petition No. 1377 of 2010, Reckitt Benckiser India Pvt. Ltd. v. The State of Assam and Others, vide judgment and order dated 18.9.2012. A Division Bench of Guwahati High Court has held that harpic and Lizol having ....
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....the aforesaid decisions of Apex Court and the High Courts the issue, which is involved in the instant revision is decided in favour of the Assessee by all the High Courts and Supreme Court. Respectfully following the said decisions, the revision petition filed by the department is dismissed as no question of law is involved and it is hereby held that Harpic and Lizol are covered under Schedule-II, Part A, Entry No.20 of UP VAT Act as such the same are classified items. I find no error in the impugned judgment and order of the Tribunal. The Revision Petition is, accordingly, dismissed." 42. Keeping in mind the principles of law laid down by Supreme Court, this Hon'ble Court as well as other High Courts i.e. Andhra Pradesh, Guwahati and Rajasthan as indicated in the writ petition hereinabove, we find that the goods in dispute are squarely covered and can easily be classifiable under "pesticides" as per Entry No. 20, Part -A of Schedule II of UPVAT Act. 43. The record reveals that the assessing authority while passing the original assessment order have considered all relevant material and rightly imposed tax at the rate of 4 %, therefore, there is no fresh or tan....
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....sue. What can be challenged is the existence of the belief but not the sufficiency or reasons for the belief. At the same time, the belief must be held in good faith and should not be a mere pretence." Applying the above principle, this court, in the case of Rathi Industries Limited Vs. 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 con....
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....contained in the proposal made by the petitioner's assessing authority, the jurisdictional fact of applicability of Rule 9 (3) of the Rules is not established He further submits that even the discovery of inadvertent mistake or non-application of mind during the assessment would not be justifiable ground for re-initiating proceeding under Section 29 (7) of the Act. 45. The respondent's counsel has argued that the original assessment order was passed without application of mind and relied upon paragraph no. 31 of the counter affidavit and has made the following averments:- ".......... The assessing authority while passing original assessment order did not consider the relevant notification and there is no application of mind regarding taxability. ........... 46. The argument of the counsel for the respondent is in teeth of the judgement of the Apex Court in the case of State of U.P. Vs. Arayaverth Chawal Udyog Limited (2015) 17 SCC 324, wherein, in paragraph nos. 30 & 31, the Apex Court has specifically held as under:- "30. In case of there being a change of opinion, there must necessarily be a nexus that requires to b....