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TMI Blog1976 (9) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... lication within three months from the date of effecting the inter-State sale. Section 15(b) of the Central Sales Tax Act was amended by section 12(a) of Act 61 of 1972 with retrospective effect from 1st October, 1958. As a result of this amendment, if any tax has been paid under the local Act, it is liable to be refunded provided the goods have suffered Central sales tax. By Amendment Act 4 of 1974, the proviso to section 6 of the Andhra Pradesh General Sales Tax Act was also amended on the same lines with retrospective effect from 1st October, 1958. This amendment was published in the Andhra Pradesh Gazette on 16th February, 1974. Rule 27-A of the Andhra Pradesh General Sales Tax Rules was amended by G. 0. Ms. No. 615 dated 28th June, 1974, on the same lines so as to bring the rule in conformity with the provisions of the amended section 15(b) of the Central Sales Tax Act and the amended section 6 of the Andhra Pradesh General Sales Tax Act. This amendment of rule 27-A was published in the Andhra Pradesh Gazette on 1st August, 1974. The contention of the petitioner is that the amendment to rule 27-A is only prospective but not retrospective and that prior to the amendment of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection that the amendment of the law with retrospective effect was "fresh information" and hence the remedy of the department was to reopen the assessment under section 14(4) within a period of four years and, therefore, the order of the Deputy Commissioner, though purporting to have been passed under section 20, should be deemed to have been made under section 14(4). In the alternative, it is contended that the order passed by the Deputy Commissioner must be presumed to have been passed immediately before January, 1975, and it is for the Deputy Commissioner to explain the delay to the satisfaction of this court, viz., the delay between 17th November, 1973, when the Deputy Commissioner purported to act suo motu and pass the order, and 22nd January, 1975, when the order was actually served on the petitioner. It was further contended that the Deputy Commissioner has no jurisdiction to pass the impugned order, unless, on the date of the passing of the order, section 6 of the Andhra Pradesh General Sales Tax Act had been amended. Merely because section 6 was amended with retrospective effect, the order passed by the Deputy Commissioner on 17th November, 1973, could not be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order, or irregularity in the proceeding. It is therefore not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must in all cases be restricted to the record maintained by the officer subordinate to him, and can never make enquiry outside that record." At page 887, the instance when the revising authority may exercise its revisional jurisdiction, as distinguished from the power of reassessment is given as follows: "For instance, the power to reassess escaped turnover is primarily vested by rule 17 in the assessing officer and is to be exercised subject to certain limitations, and the revising authority will not be competent to make an enquiry for reassessing a taxpayer." It is thus clear that, according to the Supreme Court, it is not open to the revising authority to reassess a taxpayer on the ground that certain turnover had escaped sales tax. This distinction made by the Supreme Court between the power of revision and the power of making reassessment has been clearly followed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taken notice of. This would be the natural and normal meaning of the expression 'turnover which has escaped'." It was in the light of these principles that the Division Bench pointed out that, if the Deputy Commissioner had exercised his jurisdiction under section 20(2), it was not for the reason that there was any inadvertence on the part of the officer who made the assessment, but for the reason that the assessee was entitled to exemption under the law as it then stood. In view of the decision of the Supreme Court in State of Kerala v. Cheria Abdulla Co.[1965] 16 S.T.C. 875 (S.C.)., and particularly in view of the distinction between reassessment and revision, it is obvious that in the instant case, it was not within the power of the Deputy Commissioner to reopen the assessment and the only thing which the Deputy Commissioner could have done was to revise the order of assessment. Hence the exemption under the Andhra Pradesh General Sales Tax Act could not be said to have been legally granted in view of the provisions of the Central Sales Tax Act as amended by Act 61 of 1972 and of the Andhra Pradesh General Sales Tax Act as amended by Act 4 of 1974. It may also be pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pradesh Act and that would not amount to a reassessment or a fresh assessment. The next contention is that, at the date when the order of revision was passed by the Deputy Commissioner, i.e., on 17th November, 1973, the Andhra Pradesh General Sales Tax Act had not been amended by Act 4 of 1974 and, hence, at the time when the Deputy Commissioner passed the order of revision, only the amended section of the Central Sales Tax Act was on the statute book. Under these circumstances, the Andhra Pradesh General Sales Tax Act not having been amended, it is not open to the Deputy Commissioner to revise the order of the Commercial Tax Officer dated 15th November, 1969. In this connection, it must be noticed that, as a result of the amendment of section 15(b) of the Central Sales Tax Act by Act 61 of 1972, where a tax has been levied under the law of a State in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce and tax has been paid under the Central Act in respect of the sale of such goods in the course of interState trade or commerce, the tax levied under such local law shall be reimbursed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried out by Act 61 of 1972 so far as the Central Sales Tax Act is concerned, and by Act 4 of 1974 so far as the Andhra Pradesh General Sales Tax Act is concerned, it is clear that declared goods sold in the course of inter-State trade or commerce can suffer only one levy, viz., under the Central Sales Tax Act. If, however, the sales tax has been paid under the local law, then the sales tax collected under the local law has to be refunded. Under these circumstances, the fact that, at the time when the Deputy Commissioner passed the order on 17th November, 1973, the Act had not been amended, does not affect the situation. In T.R.C. Nos. 35 to 38 of 1975 and W.P. Nos. 3163 and 4352 of 1974, decided by a Division Bench of this Court, it has been pointed out that the proviso to section 6 of the State Act makes it obligatory that the declared goods must have suffered local tax and that such goods on which tax has been levied should be sold in the course of inter-State trade or commerce and that what is refundable under section 6 is not the tax payable under the Central Act, but the tax payable under the State Act. It has also been pointed out that payment of the two taxes, both under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be deemed to have been made immediately prior to January, 1975, and, therefore, barred by limitation, there is in the counter-affidavit a clear statement that the order was passed by the Deputy Commissioner on 17th November, 1973. In view of that categorical statement, it cannot be said that, at the date when the order was passed by the Deputy Commissioner, it was barred by limitation. The Division Bench of this Court in Rajmal Multanmal Co. v. Commercial Tax Officer[1976] 37 S.T.C. 252. has held that section 20(3) of the Andhra Pradesh General Sales Tax Act provides that the power of revision was to be exercised by the Deputy Commissioner within a specified period and did not speak of serving the order passed by him within that period and that, if the jurisdiction was exercised by the Deputy Commissioner by passing an order within the specified period of limitation, the fact that it was communicated to the petitioner only after that period was not at all material. We respectfully agree with that conclusion. It is true that, according to a recent decision of a Division Bench of this Court*, if the order passed by the Deputy Commissioner in revision is communicated beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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