9911796707
TMI Blog1981 (2) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th March, 1976. 2.. All the petitioners are groundnut oil manufacturers. They purchase groundnuts and decorticate and then sell the nuts without shells both in the State of Karnataka as well as outside. Each of the petitioners submitted his return for the assessment year 1964-65 and the respondent-Commercial Tax Officer (hereinafter referred to as "the Commercial Tax Officer") at the relevant time assessed them giving exemption to the inter-State sales turnover of the petitioners in respect of groundnuts. The assessment orders in respect of all the three petitioners were completed and the orders passed in the year 1967 itself though on different dates. The exemption was given in the light of the decision of the Supreme Court in Yaddalam' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Amendment Act. They also took the stand that granting of exemption would not amount to the turnover escaping assessment. It is seen from the records made available to the court that the matter rested there and on 26th March, 1976, the Commercial Tax Officer issued notice under section 25-A of the Act to rectify the assessment order in relation to each of the petitioners for the assessment year 1964-65. Section 25-A of the Act is as follows: "25-A. Rectification of mistakes.-(1) With a view to rectifying any mistake apparent from the record, the assessing authority, appellate authority or revising authority, may, at any time, within five years from the date of an order passed by it, amend such order: Provided that an amendment which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er be the defence taken by the petitioners in response to the notice issued under section 12-A of the Act, the impugned notice at exhibit B calling upon them to show cause why the assessment orders should not be rectified would clearly be impermissible inasmuch as the same was beyond five years from the date of the respective assessment orders, i.e., 30th August, 1967, 19th June, 1967, and 6th January, 1967. The fact that the impugned notices have been issued beyond five years from the date of the respective assessment orders is not in dispute. What is contended for the respondent-Commercial Tax Officer is that this Court should either construe the notice issued in 1969 under section 12-A of the Act as sufficient notice to rectify the respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar in order to bring to tax what according to the notice was escaped turnover of inter-State sale of groundnuts. The counsel for petitioners argued that the cases of the petitioners did not involve any escapement at all as the turnover was disclosed and exemption was claimed in view of Yaddalam's case [1965] 16 STC 231 (SC) and the exemption was allowed by the assessing authority and therefore, the same was outside the purview of section 12-A of the Act. He has further argued that the department which kept silent for nine years could not invoke its jurisdiction under section 25-A of the Act contrary to the express limitation contained in that section itself. The learned counsel's contention has to be allowed as the department by issuing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is statement of fact in the impugned notice itself, it cannot be said to be either a demand or a reminder on the basis of which this Court rendered the opinion in Gill Company's case [1973] 31 STC 336 (FB). In order to make the above position clear, it is necessary to state that the ratio dicidendi in Gill Company's case [1973] 31 STC 336 (FB) will be advantageous to the revenue only if it is demonstrated that an assessment was concluded against the assessee and only the amount of tax on such assessment remained unpaid when the demand or reminder was issued without any final rectification proceedings. 11.. For the above reasons, the petitioners succeed. The rule is made absolute and the impugned notices at exhibit B in all the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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