HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No.37
Civil Misc. Writ Petition (Tax) No. 382 of 2006
M/s Agrawal Trading Co. Mathura
Vs.
State of U.P. and others
********
Hon'ble Tarun Agarwala,J.
Hon'ble Surya Prakash Kesarwani,J.
(Per: Tarun Agarwala,J.) We have heard Sri M.M.Rai, the learned counsel for the petitioner and Sri C.B.Tripathi, the learned Special Counsel for the State of Uttar Pradesh.
The petitioner is a registered dealer dealing with sale and purchase of shampoo used for washing hairs. For the assessment year 2002-03, under the U.P.Trade Tax Act, the petitioner imported shampoo from outside the State of U.P. and sold the same within the State of U.P.. The assessing authority, while passing the assessment order, taxed the sale on shampoo @8%. Subsequently, the assessing officer was of the view that there was an error in the assessment order and consequently initiated proceedings for rectification of the mistake under Section 22 of the Act. The assessing authority, after considering the matter, issued an order holding that the shampoo imported by the petitioner was liable to be taxed as "cosmetics" @ 16% under Notification No.2595, dated 27.8.2001. The petitioner, being aggrieved by the said order, preferred an appeal, which was allowed by an order dated 8.4.2005 in which it was held that it was not a case of rectification, and that, in any case, it could not be taxed as cosmetics. The appellate authority, accordingly, allowed the appeal and set aside the rectification order. No further appeal was filed by the Department and the matter became final. Thereafter, it transpires, that the assessing authority still had doubt as to whether the shampoo imported by the petitioner was taxable @ 8% or 12 % and, accordingly, submitted a proposal for grant of sanction under Section 21(2) of the Act. The competent authority, after considering the matter, granted permission by its order dated 7.11.2005 on the basis of which a consequential notice under Section 21 of the Act was issued on 8.12.2005. The petitioner, being aggrieved, by the order sanctioning permission to reopen the assessment proceeding under Section 21 of the Act and the consequential notice, has filed the present writ petition.
The submission of the learned counsel for the petitioner, in short is, that it is a clear case of change of opinion, which is not permissible in view of the settled position of law enunciated by various decisions of this Court as well as by the Supreme Court. It was urged, that the assessing authority had treated shampoo @ 8% covering it under Entry No.48 of the notification No.101, dated 15.1.2000 and, consequently, bringing the shampoo under another notification, which was assessable to tax @ 12% was not permissible as it amounted to a change of opinion.
On the other hand, Sri Tripathi, the learned counsel for the Department, submitted that there is no discussion in the assessment order indicating with clarity that shampoo was taxable under Notification No.101, dated 15.1.2000 and that reasons to believe indicated in the order of the competent authority was explicit for reopening the assessment proceeding on account of the wrong charging of the rate of tax. It was urged that since lower rate of tax was charged by the assessing authority, the same could be rectified in re-assessment proceedings. The learned counsel submitted that there was no error in the order reopening the assessment proceeding.
Having heard the learned counsel for the parties and, in order to proceed further, it would be essential to have a look at the two notifications, which are relevant for the purposes. The petitioner has relied upon Notification No.101, dated 15.1.2000. The relevant Entry No.48 is as under:
Sl.
No.
Description of goods Point of tax Rate of tax percentage 1 2 3 4 48 Washing soaps and other materials used for washing purposes M or I 8.00% On the other hand, the notification relied upon by the State is Entry No.63 of the Notification No.100, dated 15.1.2000. For facility, the extract of the said Notification is extracted hereunder:-
Sl.
No.
Description of goods Point of tax Rate of tax percentage 1 2 3 4 63 Soaps and other washing soaps.
M or I 12.00% In Sarin Chemical Laboratory vs. Commissioner of Sales Tax, U.P., 1971 AIR (SC) 65, the Supreme Court considered the usage of the word "Shampoo" and held, that soap used for shampooing the hair is essentially the same as those described under "soap" which are available in several forms such as bars, cake, liquid, powder and jelly.
The learned counsel for the petitioner contended, that shampoo would come under Entry No.48, namely, "washing soaps and other materials used for washing purposes" in asmuchas shampoo could be used not only for washing hair but, even for clothes and for utensils and has relied upon the decision of the Supreme Court in Sarin Chemical Laboratory (supra).
We are, however, not impressed with the submission of the learned counsel for the petitioner, namely, that shampoo which the petitioner was importing could also be used for any other purpose other than washing hair. The petitioner in paragraph 4 of the writ petition has categorically asserted that he was selling the shampoo, which was used for washing hairs. Such admission cannot be resiled by the petitioner at the stage of hearing of writ petition.
In any case, we find that Entry No.48 of Notification No.101 of 2000, dated 15.1.2000 as notified in Hindi language is different. For facility, the Hindi version of the said notification extract is extracted as under:
Kram Sankhya Mal Ka Vivran Kar Sthal Kar Ki Dar Pratishat 1 2 3 4 63 Kapra Dhone Ka Sabun Aur Dhulai Ki Prayojno Ke Liye Upyog Mey Laya Jane Wala Anya Saman.
Ni.Ya.Aa.
8 Pratishat From a perusal of the aforesaid, it is clear, that Entry No. 48 only relates to such soaps which are used for washing clothes.
In Commissioner of Trade Tax vs. Associated Distributors Ltd, 2008 NTN (Vol.37)-1, the Supreme Court held, that if any, difference is found in the Notification issued in English and Hindi language, which was issued in the State of Uttar Pradesh and since the official language of the State of Uttar Pradesh is Hindi, the notification issued in Hindi would prevail. The Supreme Court held:-
"It is pertinent to mention here that the official language of the State of Uttar Pradesh is Hindi. If any difference is found between the notifications in English and Hindi, the notification issued in Hindi will be applicable. On the said notification, the courts have decided that confectionery comes within sweets (mithai) and sweetmeat, but it has not been mentioned that Bubble-gum comes within the category of a sweet."
In the light of the difference found in English and Hindi version of the in Entry No.48 of the Notification No.101, dated 15.1.2000 and in the light of the decision of the Supreme Court in Associated Distributors Limited (supra), we are of the opinion, that the Hindi version would prevail in the instant case and that Entry No.48 is with regard to soap which are used for washing clothes. The shampoo, which the petitioner was importing and selling, was being used for washing hairs would not be covered under the Notification No.101, dated 15.1.2000.
In the light of the aforesaid, we do not find any error in the order sanctioning permission for reopening the assessment proceeding for the assessment years 2002-03. In our view, it does not come in the category of change of opinion.
For the reasons stated aforesaid, we do not find any merit in the writ petition and is dismissed.
In the circumstances of the case, the parties shall bear their own cost.
Dated : 10.8.2015
AKJ
(Surya Prakash Kesarwani,J. (Tarun Agarwala,J.)