9911796707
TMI Blog1979 (11) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... he case, the power of the Commissioner of Sales Tax under section 39(2) to enhance an assessment includes the power to bring to tax an amount which ought to have been determined on the basis of evidence on record or whether that power does not include the power to assess to tax an amount that has escaped assessment? (3) Whether, on the facts and circumstances of the case, the Commissioner acted in excess of his jurisdiction and competence in making a fresh assessment in best judgment and in not remanding the case to the assessing officer for making a fresh assessment on merits? 2.. The facts giving rise to this reference as set out in the statement of the case are as follows: The assessee is engaged in the business of manufacturing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 23,084 determined by the assessing officer. The assessee preferred an appeal against the order of the Commissioner under section 39(3) of the Act before the Board of Revenue, which was dismissed by order dated 12th November, 1971. At the instance of the assessee, the Board of Revenue has referred the aforesaid questions of law for the opinion of this Court. 3.. At the outset, it may be stated that both the learned counsel for the assessee and the department agreed and, in our opinion rightly, that the questions of law as framed by the learned Board of Revenue do not arise out of the order of the Board and that question No. (1) proposed by the assessee to the Board of Revenue in its application dated 9th March, 1972, is the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of assessment and remanded the case for fresh assessment. 5.. Having heard the learned counsel for the parties we are of the opinion that the contentions of the learned counsel for the assessee cannot be upheld. The learned counsel for the assessee is not right in his submission that the Commissioner acted on the material de hors the record. In the statement of the case it is stated that the Commissioner of Sales Tax considered that the assessing officer in the course of assessment did not take into account material available on record, particularly regarding two transactions, namely, (1) an undisclosed payment of Rs. 11,853.52 which, according to the assessee, was the money paid by one of the partners for taking delivery of the goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of being heard, made an enquiry and passed an order enhancing the assessment. It cannot be said that the Commissioner had no jurisdiction to pass the impugned order. The order passed by the Commissioner was considered on merit by the Board of Revenue in the appeal preferred by the assessee and was upheld. In the circumstances, we are unable to agree with the contention of the learned counsel for the assessee that the Commissioner himself had no power to pass an order enhancing the assessment and he could only cancel the assessment and remand the case for fresh assessment. In this view of the matter, it is not necessary to refer to the decisions cited by the learned counsel for the assessee, which are distinguishable on facts. 7.. As a r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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