TaxTMI 
TaxTMI 
2022 (4) TMI 512
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....h following questions of law have been framed:- "A. Whether in light of judgement of Hon'ble S.C. in Mathuram Agarwal case it is right to exclude Gambier from the category of item kaththa, when the item Kaththa is not defined under U.P. Trade Tax Act, 1948? B. Whether the Gambier (Uncaria Gambier) is known as WHITE KATHTHA or not? C. Whether the category Kaththa under the U.P. TRADE TAX ACT, 1948 is not divided in to two groups that is BLACK KATHTHA and second the WHITE KATHTHA. D. Whether the order passed under sec.59 of U.P. VAT ACT, 2008 can be apply to initiate re-assessment proceeding under Sec. 21 (2) of U.P. TRADE TAX ACT, 1948? E. Whether if any item under Section 59 of U.P. VAT ACT, 2008....
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.... the case of M/s Aryaverth Chawal Udyog and others Vs. State of UP and others, 2008 Law Suit (All) 2155, the re-assessment proceedings under Section 21 (2) of the Act cannot be initiated. 4. He further submits that gambier is treated as kaththa which is evident from the registration certificate and it has neither been modified nor been cancelled nor any action on date has been initiated against the said certificate. So the proceeding of re-assessment is bad. He further submits that rate of tax on kaththa has been specifically provides in the entry for levy of tax @ 4 %. The said entry covers all kinds of kaththa and therefore, prays for allowing the revision. 5. Per contra, learned Additional Chief Standing Counsel supports the order ....
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....s("") meaning thereby at the time of getting registration certificate, the dealer in its wisdom and knowledge knows that he will be trading in gambier and not kaththa. Had it not been so, the dealer must have got its registration certificate amended by getting it correct as kaththa. He further submits that it is not a case of change of opinion but it is a clear case of assessing the tax at the lower rate than what it is assessable under the Act i.e. as unclassified item because the gambier was being imported in the garb of kaththa. He further submits that once an order inter-party is passed by this Court, the applicant was not justified in saying that kaththa has been imported and tax has rightly been imposed at the lower rate of 4 % . He p....
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....his Court in the case of M/s Samsung India Electronics Pvt. Ltd. Vs. State of U.P. & 2 Others, reported in 2017 UPTC 63, in paragraph nos. 11, 14 & 15, has held as under:- "11. Further, a subsequent judgment cannot be used to reopen assessments or disturb past assessments which have been concluded. [See Para 7, Austin Engineering V. JCIT (2009) 312 ITR 70 (Guj.) Para 4 and 5, Bear Shoes 2011 (331) ITR 435 (Mad.), B.J. Services Co. Middle East Ltd. v. Deputy Director (2011) 339 ITR 169 (Uttarakhand), Sesa Goa V. JCIT 2007 (294) ITR 101 (Bom.), Geo Miller and Co. 2004 (134) Taxmann 552 (Cal)]. Reliance is also placed on the decision of the Hon'ble Supreme Court in MEPCO Industries V. CIT, (2010) 1 SCC 434, where the CIT on the ba....
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....of the legal position by the judgement of the Supreme Court does not authorize the Department to reopen the assessment, which stood closed on the basis of the law, as it stood at the relevant time." 11. This Court in the case of Assotech Realty Pvt. Ltd (supra) has held as under :- 25.In view of the above cited judgements and the principles enunciated therein, reopening of the proceeding of completed assessment in question renders bad and in colourable exercise of powers and without jurisdiction. 26.It is evidently clear that the assessment, once has become final, should not have been reopened on the basis of subsequent judgment of the Apex Court. 12. In view of above law laid down by Hon'ble the Apex Court as well a....