CIVIL WRIT JURISDICTION CASE No.12767 OF 1993 ------------ In the matter of an application under Article 226 of the Constitution of India ------------ M/S Bihar Dairy And Foods, a Proprietorship firm having its place of business at Khagaul Road, Danapur, P.O. & P.S. Town- Danapur, District- Patna through its proprietor Giridhar Mimani ………………..Petitioner Versus 1The State of Bihar 2.The Commissioner of Commercial Taxes, Bihar, Patna 3.The Assistant Commissioner of Commercial Taxes, Danapur Circle, Danapur 4.C.T.O., Danapur Circle, Danapur ………………..Respondents ----------- For The Petitioner : M/s S.D.Sanjay, Gautam Kejriwal, Akash Chaturvedi and Gopal Prasad Gupta, Advocates For The Respondents : Mr.Anil Kumar Verma, Advocate. ----------- P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE JAYANANDAN SINGH S.K.Katriar,J.: This writ petition is directed against the orders, all of which are dated 12.8.1992 (Annexure-2 series), passed by the Commercial Taxes Officer, Danapur Circle, for the periods 1985-86, 1986-87, 1987-88 and 1988-89, under the provisions of section 19(1) of the Bihar Finance Act, 1981 (hereinafter referred to as the `Act’), whereby he has reassessed the amount of tax payable by the petitioner. 2. A brief statement of facts essential for disposal of the writ petition may be indicated. The petitioner is engaged in the business of milk and milk products, including Milk Shake and Ghee, for the purpose of sale. It is a dealer within the meaning of the Act. The petitioner had submitted its - 2 - returns for the four periods in question, and was assessed to tax by the learned Assistant Commissioner of Commercial Taxes, Danapur Circle. By four different orders of 6.6.1990, he was assessed to tax under the Act. The present proceedings are confined to taxability of Milk Shake only. Learned Assistant Commissioner, being Assessing Officer, has treated Milk Shake to be an unspecified item within the meaning of section 12 of the Act. The dealer did not prefer appeal against the orders, nor the Commissioner of Commercial Taxes exercised suo motu power of revision in terms of sub-section (4) of section 46 of the Act. 3. In exercise of the powers under section 19(1) of the Act, the Commercial Taxes Officer issued notice to the assessee (petitioner) as to why the orders of assessment (Annexure-1 series) be not recalled and its case be reassessed. The petitioner has shown cause to the same. On consideration of the materials before him, the Commercial Taxes Officer recalled the orders of assessment, and reassessed the petitioner by the impugned orders, marked Annexure-2 series. It has been stated in the orders of re-assessment that the same is based on the audit report no.235 of 1991-92 of the Accountant General, Bihar, Ranchi. The order of re-assessment concluded that Milk Shake is not covered by unspecified item within the meaning of section 12 of the Act, and is really covered by Entry 83 of Annexure-III of the - 3 - Act, and reads as follows : “83. Aerated waters and all non- alcoholic beverages including fruit juice, squashes, cordials and distilled juices but excluding tea and coffee When sold in the form of beverage, dahi & lassi 11% Dahi and lassi are exempted from tax (see item 41 of Annexure IA) `Beverages’ can only mean liquids which could be swallowed and hence this entry cannot include Rasna, Paloma and other soft drink concentrates (74 STC 185 (1989 Kerala; 97 STC 407 (1995) Bombay), Sarasaparilla can come under this item. See item 15 of Annexure II.” 4. Fresh demand notices have accordingly been issued. 5. Learned counsel for the petitioner has assailed the validity of the impugned orders on various grounds. Learned Government counsel has supported the same. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the original orders of assessment (Annexure-1 series), were passed by the learned Assistant Commissioner of Commercial Taxes. The same could, therefore, have been reassessed by an officer of the same rank, failing which an officer of superior rank. We, therefore, find serious fault with the action of the Commercial Taxes Officer in re-calling the order of the learned Assistant Commissioner Commercial Taxes. The former is obviously inferior in rank. The opening sentence of the impugned order reads as - 4 - follows : “ ” 7. The impugned orders do not specify the date of the audit report. It has been sought to be clarified in the counter affidavit that the same were dated 22.12.1992 and 25.5.1993 (Annexure-A series). As stated hereinabove, the orders of re- assessment are of 12.8.1992, and the audit reports are of later date. It is, therefore, obvious that the impugned orders could not have been passed on the basis of these audit reports. 8. In that view of the matter, we do not see any “information” within the meaning of section 19(1) of the Act to enable learned assessing officer to reopen the matter. It is evident that appeal lies before a higher authority, and review lies before the same authority. The power conferred on the learned assessing officer in terms of section 19 of the Act is obviously not an appellate power. Therefore, the Courts have assigned strict view to the expression “Information” within the meaning of section 19 of the Act. The same enables the learned assessing officer to countermand its earlier order of assessment which has otherwise attained finality. We do not find any basis for re-assessment in the - 5 - present case. 9. In the result, we allow this writ petition. The impugned orders of 12.8.1992 (Annexure-2 series) for the periods 1985-86, 1986-87, 1987-88 and 1988- 89 are hereby set aside. The orders of assessment dated 6.9.1990 (Annexure-1 series) are hereby restored. (S. K. Katriar,J.) Jayanandan Singh,J: I Agree. (Jayanandan Singh,J.) Patna High Court The 13th August, 2010 N.A.F.R./Pradeep.