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TMI Blog1982 (12) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... but a rebate of 2 paise in the rupee was allowed on the paddy purchased and consumed in the State in accordance with the prescribed rules. According to rule 17-D, every dealer in paddy was entitled to be allowed a rebate of two paise in the rupee on the paddy purchased and consumed in the State, provided that the turnover of paddy is included in his total turnover and tax paid by him thereon at the rate of five paise in the rupee on the purchases of such paddy. In other words, according to this rule, a dealer must first pay tax at the rate of 5 per cent and then claim rebate and if he satisfies the appropriate authority by producing the necessary material that paddy has been consumed within the State, he will be entitled to a rebate of 2 paise. In this case, however, the C.T.O. straightaway levied tax at 3 per cent only, which is evidently contrary to law. When this fact came to the notice of the Deputy Commissioner, he invoked his powers under section 20(2) of the Act and revised the C.T.O.'s order and subjected the said turnover to tax at the rate of 5 per cent. On appeal, the Tribunal held that inasmuch as the petitioner has not complied with the requirements of rule 17-D (which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the regularity of such proceeding and pass such order thereon as he thinks fit. Sub-section (2) empowers the Deputy Commissioner as well as the Commercial Tax Officer to exercise the power under sub-section (1) in cases of orders passed by the authorities, officers or persons subordinate to them. Sub-section (3) provides the period of limitation within which the power under sub-section (1) or for that matter subsection (2), has to be exercised. It says that the power has to be exercised within a period of 4 years of the service of the order to be revised. Now, the contention of Mr. Dasaratharama Reddi is that inasmuch as the present case is one where a lower rate than the correct rate was charged and that is sought to be rectified, the case squarely falls under sub-section (4) of section 14 and must be taken within the period of limitation prescribed in subsection (4-A) of section 14. He submits that, in such a case, resort to revisional power under section 20(2) is not permissible. For understanding this argument, it is necessary to refer to sub-section (4-C) of section 14 which confers power under sub-section (4) of section 14 upon the Deputy Commissioner as well. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with this construction. The 'escape' that serves as the foundation of the jurisdiction to reopen an assessment is that of 'turnover' and not, be it noted, an assessment. 'Turnover' escapes when it is not noticed by the officer either because it is not before him by reason of an inadvertence, omission or deliberate concealment on the part of the assessee, or because of want of care on the part of the officer the turnover though in the books has not been taken notice of. This would be the natural and normal meaning of the expression 'turnover which has escaped' in rule 17(1)." We may mention that rule 14(2) of the Madras Rules corresponds to section 20(1), while rule 17(1) corresponds to section 14(4) of our Act. This decision was followed and applied by a Full Bench of this Court in Pitchaiah v. State [1969] 24 STC 390 (FB); ILR 1970 AP 252(FB). In that case, the assessment was completed by the Deputy Commercial Tax Officer which was later on revised by the Commercial Tax Officer. Appeals preferred by the assessee were dismissed. The first contention urged before this Court was that the action of the C.T.O. must be held to be one taken under section 14(4) but not under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gathered since the passing of the order sought to be revised. In Sri Balaganesh Textiles v. Commercial Tax Officer [1978] 41 STC 445, a Bench of this Court observed that while exercising the revisory power, the revising authority would be restricted to the examination of the record and that the legality, propriety or regularity of the order shall have to be determined on such record already available. Inasmuch as in that case it was found that the revisional order was based upon certain facts which were not disclosed by assessment records, it was held that the order cannot be related to or justified under section 20 of the Act, but must be related to section 14(4). Mr. Dasaratharama Reddi, the learned counsel for the petitioner, however, relied upon S.M. Brothers v. Deputy Commissioner of Commercial Taxes [1977] 39 STC 182 and an unreported decision of this Court in T.R.C. Nos. 68 of 1976 and 8 of 1977 dated 31st October, 1977*, in support of his proposition. In S.M. Brothers v. Deputy Commissioner of Commercial Taxes [1977] 39 STC 182, the question was whether seat covers are accessories or not. This aspect was not at all considered by the assessing authority who subjected th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anarayana Rice Mill [1975] 35 STC 601 and S.M. Brothers v. Deputy Commissioner of Commercial Taxes [1977] 39 STC 182, this decision too cannot be said to have been correctly decided. *Reported as State Representative before S.T.A. Tribunal, Hyderabad v. National Rubber Manufacturers Ltd. [1978] 42 STC 392. We accordingly hold that the period of limitation prescribed in sub-section (4-A) of section 14, as it stood at the relevant time, is not at all applicable in the instant case. The proper period of limitation is the one prescribed by subsection (3) of section 20, and admittedly, the order has been passed within the period of limitation prescribed by section 20(3). Mr. Dasaratharama Reddi then contended that on the facts and circumstances of the case, the assessee must be now given an opportunity to apply for rebate as contemplated by entry 8 to the Second Schedule, as it stood at the relevant time, and the relevant rules in that behalf. We feel that such a course must be left open to the assessee in the facts and circumstances of the case. We therefore observe that it shall be open to the petitioner to apply to the assessing authority for rebate in accordance with law and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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