Anshuman Singh, J.
1. These two revisions have been filed by the assessee under Section 11(1) of the U.P. Sales Tax Act, 1948 (hereinafter referred to as the Act), against the judgment dated 6th August, 1984, passed by the Sales Tax Tribunal, Muzaffarnagar Bench, Muzaffarnagar, relating to the assessment years 1978-79 and 1979-80 arising out of proceedings under Section 21 of the Act.
2. The assessee is carrying on the manufacture of wooden products in the shape of battens, wooden round block. The Sales Tax Officer in the original assessment proceedings treated the goods manufactured by the assessee as timber products and imposed tax at the rate of 6 per cent prescribed under the law. Subsequently a notice under Section 21 of the Act was issued by the Sales Tax Officer and assessment order was passed for the aforesaid years treating the goods manufactured by the assessee as electrical goods. The assessee feeling aggrieved against the order of the assessing authority for both the years preferred appeals before the Assistant Commissioner (Judicial) who allowed the appeals of the assessee and set aside the orders of the Sales Tax Officer. The revenue went up in second appeals before the Tribunal which by the impugned orders allowed the appeals of the revenue, annulled the order of the Assistant Commissioner (Judicial) and directed the assessing authority to make fresh assessment in accordance with law and the directions contained in its judgment. Being dissatisfied, the assessee has come to this Court in the instant revisions.
3. Learned Counsel appearing for the assessee has contended that the proceedings under Section 21 of the Act were illegal and without jurisdiction inasmuch as they were initiated on the basis of the change of opinion. He further argued that none of the conditions mentioned in Section 21 are present in the instant cases for issuing a notice under the said section and the assessing authority was not justified in issuing the same. Learned standing counsel appearing for the revenue has contended that since the goods manufactured by the assessee were taxed at a lower rate than at which it was assessable under the Act at the time of assessment, the notice under Section 21 of the Act was valid. The argument advanced by the learned standing counsel for the department cannot be accepted inasmuch as there is no dispute that the rate of tax under the Act on timber products was 6 per cent at the time of original assessment. The rate of tax applied by the assessing authority on timber products in the original assessment proceedings was 6 per cent and as such it cannot be said that the commodity manufactured by the assessee was assessed at a rate lower than at which it was assessable under the Act. It is a different matter that the timber products were liable to tax at the rate of 6 per cent while electrical goods were liable to tax at the time of original assessment at a higher rate. The commodity, which was manufactured by the assessee, was treated as timber products. It was open to the assessing authority to have treated the said commodity manufactured by the assessee as electrical goods. However, even if the goods manufactured by the assessee were wrongly treated as timber products by the assessing authority it was open to the department to have challenged the said order in appeal on the ground that the commodity manufactured by the assessee was not timber product but was electrical goods. The Assistant Commissioner (Judicial) has recorded a positive finding that for both the years the sales of battens were treated as timber products by the assessing authority and there was no jurisdiction for issuing a notice under Section 21 of the Act. The Tribunal on the contrary without going into the question as to whether issuance of notice under Section 21 of the Act was called for in the circumstances of the case or not has decided the case on merit as if the proceedings arose out of original assessment. The controversy involved in the instant cases was not as to whether the goods manufactured by the assessee were timber products or electrical goods but was whether on the facts of the case proceedings under Section 21 could be initiated against the assessee or not. No material has been brought on record except this that the assessing authority changed his opinion that the goods manufactured by the assessee were electrical goods and not timber products. It has not been disputed before me by the standing counsel that proceedings under Section 21 of the Act cannot be initiated by mere change of opinion.
4. In view of the aforesaid fact the revisions succeed and are allowed. The orders passed by the Tribunal are quashed. However, there will be no order as to costs.