Honble Rajes Kumar, J.
(Delivered by Hon'ble Rajes Kumar, J.) By means of the present aforesaid four writ petitions, the petitioner has challenged the orders dated 30.1.2010 passed by respondent no. 2 under the proviso to Section 21 (2) of the U.P. Trade Tax Act (hereinafter referred to as the "Act") for the assessment years 3003-04, 2004-05, 2005-06 and 2006-07 and consequential notices dated 2.3.2010 issued under Section 21 of the Act by respondent no. 3.
The brief facts of the case, mentioned in the writ petition, are that the petitioner is a partnership firm having its registered Head Office at G/4 Nityanand Appartments, Vakilwadi Punit Ashram Road, Manin Nagar, Ahmadabad. The said firm entered into an agreement with the Indian Railway Catering and Tourism Corporation Limited (hereinafter referred to as "IRCTC") to carry out the business of catering and sales of food products, tea, coffee, etc. and also sales of cold drink, biscuits, mineral water, etc. at Railway Station Mathura Junction through Stalls. The petitioner also entered into an agreement with IRCTC to provide food-stuffs, etc. in Pantry Cars in different trains at different routes. The petitioner claimed to have been maintained its combined books of account at Head Office, which are duly audited by the Chartered Accountants. At the Mathura Junction Railway Statition, the petitioner was carrying on the business in the name of M/s Hakmi Chand D & Sons, which is registered with the Trade Tax Department at Mathura. It is the case of the petitioner that regular and complete books of account in the ordinary course of business had been maintained for the years under consideration. The regular returns of the turnover were submitted and the assessment orders under Rule 41 (8) were passed by the Assessing Authority accepting the disclosed turnover.
After the assessment orders were being passed the proposals have been sent by the Assessing Authority for all the aforesaid assessment years to the Additional Commissioner, Grade-1, Commercial Tax, Aligarh Zone, Aligarh for obtaining approval to reopen the case beyond the normal period of limitation under Section 21 of the Act. The approval has been sought on the basis of the report of the Sales Tax Officer (SIB), Mathura dated 28.8.2009. On receipt of the proposals, the Additional Commissioner, Grade-1, Commercial Tax, Aligarh Zone, Aligarh has issued notices to the petitioner to provide an opportunity before granting approval. The petitioner filed replies to the notices. The Additional Commissioner, Grade-1, Commercial Tax, Aligarh Zone, Aligarh on consideration of the replies granted approval in all the assessment years under the proviso to Section 21 (2) of the Act authorising the Assessing Authority to initiate the proceeding under Section 21 of the Act beyond the normal period of limitation. In pursuance thereof, notices under Section 21 of the Act have been issued by the Assessing authority. The petitioner is challenging the orders of the Additional Commissioner, Grade-1, Commercial Tax, Aligarh Zone, Aligarh by which he has granted approval and also challenging the notices issued under Section 21 of the Act by the Assessing Authority for all the aforesaid assessment years.
Heard Sri N.R. Kumar and Sri Vishwjeet, learned counsel for the petitioners and Sri U.K. Pandey, learned Standing Counsel.
Learned counsel for the petitioner submitted that the books of account have been produced before the Assessing Authority along with complete details of the purchases, sales, opening stock, closing stock and the expenses and the Assessing Authority after examining the books of account and other details, in the absence of any incriminatory material, has accepted the disclosed turnover . He further submitted that there was no material on record to show that there was any escaped assessment. The proceeding under Section 21 of the Act has been drawn on account of change of opinion. Reliance has been placed on various decisions of this Court, including the decision in Civil Misc. Writ Petition No. 298 of 2008 (M/s Kwality Metal Works Vs. State of U.P. and others) decided on 8.7.2010.
Learned Standing Counsel submitted that as per the report dated 28.8.2009 of the Sales Tax Officer (SIB), Mathura, the petitioner has paid a sum of Rupees 10.07 lacs towards licence fee and a sum of Rupees 4.3 lacs towards commission/collection fee. 96 vendors have been approved in the years under consideration and if the amount of licence fee, collection fee, other expenses and commission are being included, the turnover should be much more higher to the turnover disclosed by the assessee. He submitted that during the original assessment proceeding, the petitioner was not disclosed the licence fee and collection fee and the same have not been considered in the assessment orders. He submitted that the report of the Sales Tax Officer (SIB), Mathura, constitutes the material to initiate the proceeding under Section 21 of the Act.
We have considered the rival submissions and gone through the record.
The report of the S.T.O. (SIB), Mathura had not been considered in the original assessment order for the relevant assessment years. The report of the S.T.O. (SIB), Mathura is relevant for the years under consideration as in this report it was informed that the petitioner had paid a sum of Rupees 9 lacs towards licence fee, a sum of Rupees 4.3 lacs towards collection/commission fee and 96 vendors have been approved in the years under consideration. Admittedly these licence fee and collection/commission fee have not been shown in the books of account maintained for Mathura branch and have not been considered in the assessment order. As per the profit and loss account filed along with the writ petition, if the expenses towards licence fee and collection/commission fee are taken into account, there was loss. Therefore, on these facts the inference drawn by the authority concerned that the petitioner has disclosed less turnover and there was escaped assessment cannot be said to be without any basis. The case of the petitioner is that these expenses have been paid by the Head Office and these amounts have been debited in that account, requires verification. It would be open to the petitioner to explain the alleged discrepancies before the assessing authority.
In view of the above facts and circumstances, it cannot be said that the approval granted by the Additional Commissioner, Grade-1, Commercial Tax, Aligarh Zone, Aligarh under the proviso to Section 21 (2) of the Act and initiation of proceeding under Section 21 of the Act were without any material.
In the facts and circumstances, no interference is called for.
In the result, all the writ petitions fail and are dismissed. There shall be no order as to costs.
Dated: 1st October, 2010 OP