JUDGMENT
R.K. Vijayvargiya, J.
1. By this reference under Section 44(1) of the M. P. General Sales Tax Act (hereinafter referred to as the Act), the following questions of law have been referred by the Board of Revenue for the opinion of this Court:
(1) Whether, under the facts and circumstances of the case, the notice issued to the assessee in form XVI was proper, having stated the reasons which prompted the reopening of the case, and the case could be reopened under Section 19(1) of the Act ?
(2) Whether, under the facts and circumstances of the case, the reopening of the assessment under Section 19(1) amounted to a change of opinion by the assessing authority and for that reason the reassessment was valid and proper under Section 19(1) of the Act ?
(3) Whether sale of batteries made separately without being attached to motor vehicles and made separately from them was covered by the M. P. Government, Separate Revenue Department Notification No. 1126-936-V-ST-68 dated 20th March, 1968 ?
2. The facts giving rise to this reference as set out in the statement of the case are as follows : The assessee, Laxmi Motors, is a dealer in motor batteries and has been assessed to sales tax for the financial year 1968-69. The gross turnover in the case included the turnover in respect of sale of batteries amounting to Rs. 6,58,032 which was initially assessed to tax at the rate of 10 per cent. Since the rate of tax on batteries was 11 per cent with effect from 1st September, 1967, the case was reopened under Section 19(1) of the Act and after giving notice to the dealer and considering his reply additional tax was assessed at the rate of 1 per cent against the assessee. The assessee objected to the reassessment on the ground that the notice did not reveal any reason for reopening of the assessment. The contention was negatived by the assessing officer who observed that the notice clearly mentioned that batteries worth Rs. 6,58,032.84 were assessed at the rate of 10 per cent instead of 11 per cent as per entry 1-A of Part II of Schedule II to the Act and therefore the assessment was at a lower rate. The assessee preferred an appeal against the order of reassessment. The Appellate Assistant Commissioner negatived the contention of the assessee that the notice issued in form XVI did not give any reason for reopening the assessment and that batteries sold by the assessee were covered by the Government of M. P., Separate Revenue Department Notification No. 1126-936-V-ST-68 dated 20th March, 1968. The assessee preferred second appeal before the Board of Revenue. The Board of Revenue also rejected the objections raised by the assessee and dismissed the appeal. At the instance of the assessee the Board of Revenue has referred the aforesaid questions of law for the Opinion of this Court.
3. It was contended by the learned counsel for the assessee that the assessing authority had assessed the sale of batteries on application of mind and he had no jurisdiction to reopen the assessment and reassess the sale of batteries. In the circumstances of the case the reassessment would amount to change of opinion which cannot be a ground for reassessment under Section 19(1) of the Act. It was further contended that the grounds for reassessment were not stated in the notice and, therefore, the notice was invalid. It was also contended that the batteries were rightly assessed at 10 per cent because the same were covered by the M. P. Government, Separate Revenue Department Notification No. 1126-936-V-ST-68 dated 20th March, 1968. The contentions of the learned counsel for the assessee cannot be upheld.
4. The Board of Revenue has agreed with the view expressed by the first appellate authority that the original assessment order does not show that the assessing authority had cared to apply its mind to the question whether the batteries were assessable at 10 per cent under entry 1 of Part II of Schedule II to the Act or entry 1-A of Part II of Schedule II thereof and that the batteries in the present case clearly fell within the purview of entry 1-A and were liable to assessment at 11 per cent and therefore the turnover was originally assessed at a lower rate and could be reassessed under Section 19(1) of the Act. It was further held by the Board of Revenue that batteries are covered by the specific entry 1-A and therefore the notification of the State Government upon which reliance was placed by the assessee was not applicable to the turnover in question.
5. Entries 1 and 1-A of Part II of Schedule II to the Act are as follows:
1. Motor vehicles, including chassis of motor vehicles, motor bodies, motor tyres and tubes and spare parts and accessories of motor vehicles.
1-A. Batteries excluding cells mentioned in entry 30 of this part.
Notification No. 1126-936-V-ST dated 20th March, 1968, is as follows :
In exercise of the powers conferred by Section 12 of the Madhya Pradesh General Sales Tax Act, 1958 (No. 2 of 1959), the State Government hereby exempts in part the goods specified in column (1) of the table below from payment of sales tax so as to reduce it to the rate of tax mentioned in column (2) of the said table for the period specified in column (3) thereof :
TABLE
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Description of goods Reduced rate of tax Period
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(1) (2) (3)
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Motor vehicles including chassis 10 per cent. From the 1st April,
of motor vehicles, motor 1968, to 31st March,
bodies, motor tyres and tubes 1974 (both the days
and spare parts and accessories inclusive).
of motor vehicles.
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Note : Period extended from time to time.
The notification has no reference to batteries and entry 1-A of Part II of Schedule II to the Act referred to above specifically deals with batteries excluding cells mentioned in entry 30 of this part. It is well-settled that if a commodity is covered by a specific entry and it also can be included within the purview of a general entry the commodity has to be assessed under the specific entry. We are, therefore, of the opinion that the Board of Revenue was justified in holding that as the turnover relating to batteries was assessed at a lower rate the assessing authority was justified in reassessing the same under Section 19(1) of the Act and that batteries were assessable under entry 1-A of Part II of Schedule II to the Act and was not covered by the M.P. Government ratification relied upon by the assessee.
6. As a result of the discussion aforesaid our answer to question No. (1) is in the affirmative and against the assessee. Our answer to question No. (2) is that the reopening of the assessment was not invalid and improper under Section 19(1) of the Act on the ground that reopening of the assessment amounted to change of opinion by the assessing authority; and our answer to question No. (3) is in the negative and against the assessee. In the circumstances of the case we leave the parties to bear their own costs of this reference.
