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TMI Blog1981 (3) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rs. 66,41,195.64 by an assessment order dated 15th March, 1971. Subsequent to this order, the Supreme Court in its judgment in State of Tamil Nadu v. Burmah Shell [1973] 31 STC 426 (SC) dated 10th October, 1972, held that the sale of such scraps by a dealer should be treated as transactions which are incidental or ancillary to the trade in spite of the fact that there was no profit-motive or that the dealer was not a dealer in such assets and that the turnover relating to the same is liable to be included in the taxable turnover. In the light of the Supreme Court judgment, on the ground that such sales of old assets were to be included in the taxable turnover, notice under section 55 of the Tamil Nadu General Sales Tax Act, 1959, was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings were taken up and by an order dated 18th November, 1975, holding that the turnover relating to sale of old assets has escaped assessment, and relying on the judgment of the Supreme Court in State of Tamil Nadu v. Burmah Shell [1973] 31 STC 426 (SC), made a reassessment order including the turnover as proposed. It may be mentioned that before this assessment order, the assessing officer seems to have issued another notice on 24th October, 1975, subsequent to the Tribunal's order dated 24th June, 1975, again stating that the turnover relating to sale of old assets has escaped assessment and the assessing officer is proposing to include that turnover and make a reassessment order under section 16 of the Act. In this notice als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal is dated 24th June, 1975, it is retroactive at least from the date of the rectification order dated 6th March, 1974, if not from a date earlier, namely, the date of notice issued under section 55, so that in law after the order of the Tribunal, there was no order rectifying the original assessment. If this was the effect of the Tribunal's order, then the original assessment order stood throughout from the date of its assessment till 11th March, 1975, with the infirmity that it had allowed certain turnover to escape assessment to tax. The notice dated 11th March, 1975, was, therefore, validly issued. Even if we were to assume that the rectification order dated 6th March, 1974, was in force, we are of the opinion that the notice dated 11t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with the principles of natural justice of giving an opportunity to the assessee to put forward his objections but does not concern with the jurisdiction of the officer to initiate reassessment proceedings under section 16. In those circumstances, even if on the date when the notice was issued, i.e., on 11th March, 1975, it could not be taken that the turnover relating to sale of old assets as having been excluded from the taxable turnover by reason of the rectification order, the notice itself could not be held to be illegal or beyond the jurisdiction of the officer. It was next contended by the learned counsel for the assessee that the period of five years prescribed under section 16(1) to determine the escaped turnover to the best of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring which the proceedings for assessment or reassessment remained stayed under orders of civil. court or other competent authority would have been excluded. In fact this Court has pointed out in the unreported judgment, that section 16(4) is an independent provision, which would be applicable to a case where there was no return at all submitted and in that sense it was an assessment, and to a case of reassessment proceedings where there was an original assessment in which some turnover has escaped assessment, and that it could not be read in any way restricting or limiting the scope of powers of section 16. This judgment was followed in two other cases by another Division Bench in State of Tamil Nadu v. Mohamed Sulaiman & Co. [1980] 46 STC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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