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TMI Blog1960 (3) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... file any return for the assessment year 1948-49 under the Act. The Sales Tax Officer, Kanpur, issued a notice to the respondent under section 21 of the Act on the 20th of March, 1952, and in spite of the protest of the respondent that it was not a dealer, assessed the respondent to sales tax on the 31st March, 1952. The assessment was based on the estimated turnover of the respondent's business which had escaped assessment for the assessment year 1948-49. The respondent appealed against that assessment order to the Judge (Appeals) Sales Tax, Kanpur. The appeal was allowed and the assessment order was annulled. Against this order of the Judge (Appeals) Sales Tax, Kanpur, the Commissioner of Sales Tax, U.P., filed a revision before the Judge (Revisions) Sales Tax, U.P. By order dated 28th of March, 1955, the Judge (Revisions) Sales Tax allowed the revision application, set aside the assessment order of the Judge (Appeals) Sales Tax and remanded the case for fresh assessment after proper scrutiny of the account books in the light of the observations made in his order. In pursuance of this order of the Judge (Revisions) Sales Tax the Sales Tax Officer issued a notice on the 10th of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Act the following shall be and be always deemed to have been substituted: '21. (1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year, the assessing authority may, after issuing notice to the dealer, and making such enquiry as may be necessary, assess or re-assess him to tax: Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment, or full assessment, as the case may be. Explanation-Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment. (2) No order of assessment under sub-section (1) or under any other provision of this Act shall be made for any assessment year after the expiry of four years from the end of such year: Provided that where the notice under sub-section (1) has been served within such four years the assessment or re-assessment to be made in pursuance of such notice may be made within one year of the date of the service of the notice even if the period of four years is thereby exceeded: Provided fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der continues to be bad and reliance is placed on the case of Firm Bangali Mal Satish Chandra Jain v. The Sales Tax Officer, Agra[1958] A.L.J. 228; 9 S.T.C. 492. In reply the learned standing counsel submits that the order of the judge (Revisions) dated the 28th March, 1955, was not a wrong order under the old section 21 of the Act, that it would not become a wrong order merely because it could not be enforced or supplemented. It is submitted that the judge (Revisions) did not suffer from any inherent lack of jurisdiction to pass that order. We are of opinion that this appeal should be allowed. It is not disputed that the Sales Tax Officer could have assessed tax on the turnover of the respondent's business which escaped assessment to the sales tax in 1948-49 upto 31st March, 1952. The Sales Tax Officer did make such an assessment on the 31st March, 1952. An appeal against that assessment order lay to the judge (Appeals) under section 9 of the Act. Sub-section (3) of section 9 lays down the powers of the appellate authority for disposing of the appeal. This sub-section is: "The appellate authority may, after giving the appellant a reasonable opportunity of being heard (a) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , call for and examine the record of any order made by any Appellate or Assessing Authority under this Act, for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order as he thinks fit: Provided that no such application shall be entertained in any case where an appeal lay against the order, but was not preferred." The Judge (Revisions), the Revising Authority, could therefore on the application of the Commissioner, Sales Tax, pass any order which he thought fit. His power is not restricted in any way, and therefore is at least as wide, if not more, than the power of the appellate authority. He can therefore pass an order setting aside the assessment made by the Sales Tax Officer under old section 21 of the Act and direct the Assessing Authority to pass a fresh order after such further enquiry as may be directed. The order of the judge (Revisions) of the 28th March, 1955, did not go beyond this. By this order the Judge (Revisions) set aside the assessment order and remanded the case for a fresh assessment after proper scrutiny of the account books in the light of the observations made by him. We are therefore of opinion that the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee appealed to the Assistant Commissioner of Income-tax and challenged the power of the Income-tax Officer to make that order. The appeal was dismissed. The assessee then applied to the Commissioner requesting him to exercise his powers under section 33 of the Income-tax Act or, in the alternative, to refer the matter to the High Court under the provisions of section 66(2) of the Income-tax Act. The High Court held that the Income-tax Officer had no power to make that order in view of the provisions of sections 34 and 35 of the Income-tax Act. Their Lordships of the Privy Council agreed with that view and said at page 179: "But when once a final assessment is arrived at, it cannot, in their Lordships' opinion be reopened except in the circumstances detailed in sections 34 and 35 of the Act (to which reference is made hereafter) and within the time limited by those sections...............The Commissioner's powers under section 33 can only be exercised subject to the provisions of the Act, of which the provisions in sections 34 and 35 are in this respect of the greatest importance." According to section 34 of the Income-tax Act, an Income-tax Officer can issue a notice fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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