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TMI Blog1976 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ot liable to tax. This contention was accepted by the assessing authority and, therefore, the turnover referable thereto was excluded. Subsequently, the assessment was reopened under section 16 of the Act and the turnover was included. The petitioner put forward two contentions against the reopening. One was, section 16 did not warrant such reopening of the assessment under such circumstances and, secondly, that "technical grade urea" was nothing but urea coming within the scope of entry 21(3) of the First Schedule and, therefore, was entitled to be excluded from the taxable turnover. Both those contentions were rejected and the reopening and the consequential assessment were sustained by the Tribunal. It is this conclusion that is challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973 is concerned with an assessment made for the first time under section 12 of the Act. T. C. Nos. 150 and 151 of 1973 deal with the assessment as a result of reopening under section 16 of the Act since the canteen sales were previously exempted. Consequently, on merits, the common question that arises in respect of these three cases is whether the petitioner was entitled to the exemption in respect of canteen sales in terms of the notification of the Government referred to above. There is no controversy in these cases that the twenty-five per cent of the expenses provided for in the notification will be satisfied only if the depreciation allowance in respect of canteen equipments other than furniture used in the canteen are taken into ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the Supreme Court, it must be held that the turnover relating to the sales of scrap is liable to be included in the taxable turnover. As far as T. C. Nos. 447 and 448 of 1976 are concerned, in those cases originally certain turnover was excluded from the taxable turnover on the ground that the sales thereof represented turnover relating to export sales. In view of the judgment of the Supreme Court in Mod. Serajuddin v. State of Orissa[1975] 36 S.T.C. 136 (S.C.)., that turnover could not be excluded but has to be included. That is what has been done by reopening of the assessment under section 16 of the Act. Consequently, in all the above cases, on merits, the turnover in question was liable to be included in the taxable tur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover of business of a dealer has escaped assessment to tax" and, according to the learned counsel, when the assessing authority, at the first instance, has actually applied his mind to a particular turnover and rightly or wrongly held that the turnover was not liable to be included as a taxable turnover, such turnover cannot be said to be an escaped turnover. According to the learned counsel, the expression "escaped turnover" will include only that turnover which was not at all noticed by the assessing authority, whatever the reason may be, but it will not include the turnover which was actually noticed and with reference to which the assessing authority has come to a conclusion one way or the other. The second submission based on the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the result of a confusion between the best judgment assessment provided for in section 12(2) of the Act and the determination to the best of judgment of the turnover provided for in section 16(1) of the Act. The language used in the two sections and the purpose for which the best judgment test is to be applied are different. Therefore, simply because section 16(1) uses the expression "best of its judgment", it cannot be held that section 16(1) can be invoked only in a case where an element of estimate of the turnover enters into the calculation and has no application to a case where a turnover is known and definite and only the liability of the same to tax is under consideration. Therefore, we reject the second contention also. The res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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