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TMI Blog1977 (1) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... 1970 - - - Dated:- 11-1-1977 - KHANNA H.R., GOSWAMI P.K. AND KAILASAM P.S. JJ. R.M. Mehta, Senior Advocate (amicus curiae), for the respondent. Narayan Nettar, Advocate (amicus curiae), for the respondent. -------------------------------------------------- The judgment of the Court was delivered by KHANNA, J. -These two appeals by special leave are against the common judgment of the Mysore High Court whereby the High Court in two petitions under article 226 of the Constitution of India quashed two orders made by the Deputy Commissioner of Commercial Taxes, the appellant, under section 21 of the Mysore Sales Tax Act, 1957 (hereinafter referred to as the Act). The respondent is an excise contractor. He was as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner, Raichur [1967] 1 S.C.R. 548., and held that the amount of shop rent being not excise duty should not be deducted in computing the turnover of the respondent for the two years in question. The taxable turnover of the respondent for the two years in question was accordingly enhanced. The respondent made two applications for rectification of the orders of the appellant dated June 28, 1967. It was urged on behalf of the respondent that the revision of assessments was barred by limitation under section 21(3) of the Act and as such there was a mistake apparent on the record. The appellant rejected those applications. The respondent then preferred two appeals to the Sales Tax Appellate Tribunal. The Tribunal too rejected those appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment to tax or licence fee or has been assessed at a lower rate than the rate at which it is assessable, the assessing authority may, subject to the provisions of sub-section (2), at any time within a period of five years from the expiry of the year to which the tax or licence fee relates, assess to the best of its judgment, the tax or licence fee payable on the turnover referred to after issuing a notice to the dealer and after making such enquiry as it considers necessary." Section 21 of the Act deals, inter alia, with revisional powers of the Deputy Commissioner. Sub-sections (2) and (3) of that section read as under: "(2) The Deputy Commissioner may of his own motion call for and examine the record of any order passed or proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ceases to be operative. The effect of reopening the assessment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment. The initial order for reassessment cannot be said to survive, even partially, although the justification for reassessment arises because of turnover escaping assessment in a limited field or only with respect to a part of the matter covered by the initial assessment order. The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of the turnover escaping assessment. As it is, we find that in the present case the assessment orders made under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come that had escaped assessment during that year." In the case of Commissioner of Sales Tax, Madhya Pradesh v. H.M. Esufali H.M. Abdulali [1973] 32 S.T.C. 77 (S.C.); 90 I.T.R. 271 (S.C.)., this Court dealt with reassessment made under section 19 of the Madhya Pradesh General Sales Tax Act, 1958. It was held that when reassessment is made, the former assessment is completely reopened and in its place fresh assessment is made. Hegde, J., speaking for the Court, observed: "What is true of the assessment must also be true of reassessment because reassessment is nothing but a fresh assessment. When reassessment is made under section 19, the former assessment is completely reopened and in its place fresh assessment is made. While reassessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force and that was not the order sought to be rectified. It is admitted that all the rectification orders would be within time calculated from the original rectification order. Rule 38 itself speaks of 'any order' and there is no doubt that the rectified order is also 'any order' which can be rectified under rule 38." Although the above case related to an order which had been subsequently rectified, the principle laid down therein would, in our opinion, be also applicable in cases where reassessment is made on the ground that certain amounts of turnover had escaped assessment. Before we conclude, we may observe that according to section 33B of the Indian Income-tax Act, 1922, the Commissioner cannot revise an order of reassessment made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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