Court No. - 37 Case :- WRIT TAX No. - 1238 of 2009 Petitioner :- J.P. Fishing Material Company Respondent :- State Of U.P. & Others Petitioner Counsel :- S.D. Singh Respondent Counsel :- C.S.C. Hon'ble Rajes Kumar,J.
Hon’ble Bharati Sapru,J.
Heard learned counsel for the parties.
By means of the present writ petition, the petitioner is challenging
the assessment order for assessment year 2000-01 levying the tax
on the fishnet fabric treating it as a HDPE fabric, as an unclassified
item.
The contention of the petitioner is that fishnet fabric, in which the
petitioner deals, is not made out of HDPE fabric and is a polyester
rayon fabrics and, therefore, it falls under the category of textile
and exempted from tax. In reply to the show cause notice, the
petitioner has pleaded this aspect of the matter but the Assessing
Authority instead of considering the pleas of the petitioner and
examining the nature of fabric has treated the fishnet fabric as
HDPE fabric merely on the basis of the decision of this Court in
the case of Gaurav Traders, Meerut Vs. Commissioner of Trade
Tax, U.P., Lucknow, reported in 1996 NTN (Vol.9) 262.
Learned Standing Counsel submitted that let the matter be
relegated to the Assessing Authority to consider the plea of the
petitioner and examine whether fishnet fabric, in which the
petitioner deals, is HDPE fabric or it is polyester rayon fabric.
We have gone through the impugned order. We are of the view
that the Assessing Authority has not considered the plea of the
petitioner as to whether the fishnet fabric, in which the petitioner
deals, is HDPE fabric or it is polyester rayon fabric. He simply
relied upon the decision of this Court in the case of Gaurav
Traders, Meerut Vs. Commissioner of Trade Tax, U.P., Lucknow
(Supra) and treated the fishnet fabric, in which the petitioner deals,
as HDPE fabric and denied the claim of exemption.
In the facts and circumstances, we are of the view that let the
petitioner may lead the evidence in support of the claim that
fishnet fabric, in which the petitioner deals, is polyester rayon
fabric and not HDPE fabric and the Assessing Authority is
directed to examine the claim of the petitioner in accordance to
law.
In the result, the writ petition is allowed. The assessment order for
the assessment year 2006-07 is set aside and the matter is relegated
to the Assessing Authority to pass a fresh order in the light of the
observation made above.
Order Date :- 4.8.2010
OP
