An audit report cannot constitute information for reopening assessment under Section 19(1) of the Bihar Finance Act, 1981. A mere change of opinion by the authority on the same set of facts and materials on record does not constitute information.

S.J.Mukhopadhaya, J.

1. All these writ petitions involving common point of law were filed by the same petitioner relating to the assessment of sales tax for different periods, i.e., 1987-88, 1988-89, 1989-90 and 1990-91. Thereby they are disposed of by common orders.

2. Eureka Forbes Ltd., petitioner, a limited company having its office at Patna, Ranchi, Jamshedpur, etc., is doing business of selling vacuum cleaner. Petitioner has challenged notices issued by the respondent-Deputy Commissioner of Commercial Taxes, Jamshedpur, under Sec. 19(1) read with Sec. 17(2) of the Bihar Finance Act, 1981 (annexure 1 series in respective writ petitions) ; orders of reassessment (annexure 2 series of respective writ petitions) and orders passed in revisional applications by the Commissioner of Commercial Taxes, Patna (annexure 3/1), by which the orders of reassessment have been upheld and the revision petitions have been dismissed.

3. The brief facts of the case are as follows :

The assessments with regard to sale of vacuum cleaners for the aforesaid periods, i.e., 1987-88, 1988-89, 1989-90 and 1990-91 were made by the assessing authority treating the vacuum cleaners as "machinery", which was taxable at the rate of 8 per cent. On 6th of August, 1991, the Commissioner of Commercial Taxes, Patna, issued one order (annexure 4) in terms with Rule 7(10)(4) of the Bihar Sales Tax Rules, 1983, by which permission was granted to the petitioner to furnish consolidated return, with respect to business premises situated at Jamshedpur, Ranchi, Dhanbad and Muzaffarpur, at one place, namely, Pataliputra Circle, Patna. Earlier, to that, assessments for the aforesaid periods had already been made by the Jamshedpur Circle, Bihar.

4. It was under impugned notices issued on different dates in the year, 1993 (annexure 1 series), issued under Sec. 19(1) read with Sec. 17(2) of the Bihar Finance Act, 1981 , the petitioner was asked by the respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur as to why reassessment for the aforesaid periods be not done. The petitioner filed reply as contained in annexure 5, objecting the reassessments stating therein that the reassessments were not permissible, as it amounted to review of earlier assessment, merely on the basis of change of opinion and not on the basis of any information and/or other documents. Petitioner also challenged the jurisdiction of the respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur. Thereafter the respondent-Deputy Commissioner, Commercial Taxes, Jamshedpur vide impugned orders passed in the year, 1994 as contained in annexure 2 series, while rejecting the reply of the petitioner reassessed the petitioner for the aforesaid periods. The petitioner thereafter filed petition for revision under Sec. 46(4) of the Bihar Finance Act, 1981 , which has also been rejected by the respondent-Commissioner of Commercial Taxes, Patna vide orders as contained in annexure 3 series.

5. At this stage it is to be taken into note that the reassessments in these cases for the aforesaid period have been made by the respondent-Deputy Commissioner, Commercial Taxes, solely on the basis of an "audit report". In the State of Bihar, the respondent-State has levied tax at the rate of 8 per cent with regard to the "machineries" ; whereas 12 per cent of tax is levied with respect to "electrical goods". The vacuum cleaners, which were originally assessed at the rate of 8 per cent by the assessing authority, was so assessed treating the same as "machineries". Subsequently the audit party while submitting audit report, gave its opinion that the vacuum cleaners are "electrical goods" and for that the assessment should have been done at the rate of 12 per cent instead of 8 per cent, as has been done in the case of the petitioner. It was on the basis of such opinion of the audit party as mentioned in the audit report orders of reassessment have been passed, which have been confirmed by the revisional authority.