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TMI Blog1982 (7) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ax relates, if any such event has occurred on account of the failure of the dealer to disclose the turnover or any other particulars correctly; (b) within a period of four years from the expiry of the year to which the tax relates, if any such event has occurred due to any other causes." The question in this tax revision case is whether in the facts and circumstances of this case the assessee can be said to have been guilty of non-disclosure so as to attract the action under clause (a) of sub-rule (8). The circumstances leading to this tax revision case may briefly be stated: The assessee-petitioner is a dealer in "ghee" which is taxable at the last point of purchase within the State (item 5 of the Second Schedule to the A.P. General Sales Tax Act). The petitioner purchased ghee and sold it to certain nonresident dealers within the State, which means dealers from outside the State. The petitioner says that the goods were delivered at Vijayawada Railway Station and that it is an intra-State sale. In the return filed under the Andhra Pradesh General Sales Tax Act, hereinafter referred to as "the State Act", the petitioner disclosed the sale as an intra-State sale. On the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-disclosure of material facts and particulars in a given case is essentially a question of fact, to be decided in the facts and circumstances of each case. It is not possible to lay down any hard and fast rules governing all situations. According to the sub-rule, if there is a failure to disclose the turnover or any other particulars relating to assessment correctly, the officer has the power to reopen the same within a period of six years. On this aspect, it is necessary to refer to form C.S.T. VI prescribed by the aforesaid Rules. Clause 1 of the return requires the assessee to state the "gross amount received or receivable by the dealer during the period in respect of sale of goods" which means the total turnover of the dealer for the concerned period. From this he has to deduct (i) sales of goods outside the State through commission agents, (ii) sales of goods outside the State otherwise than through commission agents, (iii) sales of goods in the course of export outside India (as defined in section 5 of the Act) and (iv) total value of the goods transferred to other States otherwise than as a result of sale. Clause 2 requires the dealerassessee to state the turnover on in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The authority under the State Act would enquire whether a given transaction is the last purchase in the State. It may be the last purchase for many a reason, viz., it may be the last purchase because it was sold by the assessee in the course of inter-State trade; it may also be a last purchase because the ghee was utilised by the dealer-assessee for manufacturing or preparing certain other foods or goods. The authority under the State Act is not concerned with the question whether there has been an inter-State sale. That question will be gone into and examined by him while scrutinising the return under the Central enactment. When, therefore, the assessee has disclosed this transaction as an intra-State sale, it can hardly be said that the authority is put on notice that there has been a sale in the course of inter-State trade. Indeed the petitioner's contention that it is an intra-State sale was accepted by the assessing authority under the State Act. The counsel then contended that the assessee had disclosed that the sale was in favour of a non-resident dealer. But it cannot be presumed that each and every sale to a non-resident dealer is necessarily an intra-State sale. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument is misplaced and misleading. Having failed to perform the statutory obligation to disclose all the inter-State and intra-State sales effected by him in the return to be filed by him in the prescribed form, the assessee cannot claim any immunity on the ground that there was certain remissnessassuming that there has been any such remissness on the part of the assessing authority in this case-and therefore the matter should not be reopened. The two obligations must be kept apart, namely, the obligation of the dealer to disclose all the material particulars correctly and truly and the obligation of the assessing authority to apply the law correctly to the facts of each case and to arrive at the correct tax payable. If the assessee performs his obligation and the remissness is on the part of the assessing authority the latter cannot rectify his error or omission by resorting to rule 14-A(8). But if there is a failure on the part of the assessee to perform his obligation, he cannot resist a proceeding under rule 14-A(8) on the ground of remissness or error, if any, on the part of the assessing authority. The counsel for the petitioner strongly relied upon the judgment of a lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the five members in their appropriate extent. Two days later the Income-tax Officer issued another notice seeking to reopen the assessment and proposing to include the entire amount of Rs. 1,10,000 in the income of the Hindu undivided family, which was questioned by the assessee. When the matter came before the Supreme Court it held, following the decision in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta [1961] 41 ITR 191 (SC), that since the assessee had disclosed all the primary facts and the duty to draw the appropriate legal inference lies upon the Income, tax Officer, the notice given under section 34 of Income-tax Act, 1922, is unsustainable. We are unable to see any relevancy of the principle of the said case in the facts of the present case. Indeed in the case before the Supreme Court the proposal to reopen was a second proceeding and there was a disclosure of all the facts by the concerned assessee which cannot be said to be the case before us. The next decision is of a learned single judge of the Calcutta High Court in Dunlop Rubber Co. Ltd. v. Income-tax Officer [1971] 79 ITR 349. Dunlop Rubber Company was a company incorporated i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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