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TMI Blog1988 (3) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... wo years the assessee claimed that the supplies of wheat products made to the persons nominated by the Director of Civil Supplies cannot be regarded as "sales" within the meaning of section 2(n) of the A.P. General Sales Tax Act, 1957 ("the Act", for short), as these "sales" were not made at the volition of the assessee. It was claimed that the supply of goods to the nominees of the Director was compulsory under the terms of the licence and consequently the ingredients of a sale were lacking in the supplies so made to the nominees of the Director. The assessing authority accepted the above contention of the assessee and completed the assessments for the two years without including the value of supplies made by the assessee of wheat products to the nominees of the Director. The assessment for the year 1974-75 was completed on 31st March, 1976. The assessing authority determined the gross turnover at Rs. 1,39,10,795 and allowed what the assessing authority called "exemption", to the extent of Rs. 45,11,740. As already pointed out the so-called exemption was in relation to the wheat products supplied by the assessee to the nominees of the Director. For the assessment year 1975-76, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olition but under compulsion from the Director of Civil Supplies and consequently the supplies made under such compulsion could not be regarded as "sales" for the purpose of the Act. It was claimed that the assessing authority erred in reopening the matter under section 14(4)(cc) of the Act. 5.. The second contention was that the reopening of the assessments under section 14(4)(cc) of the Act was invalid, inasmuch as that provision was introduced by the A.P. General Sales Tax (Amendment) Act which came into force on 17th January, 1978. It was pointed out that the assessments for the years 1974-75 and 1975-76 were made long prior to 17th January, 1978 and they had become final and it was not open to the assessing authority to disturb the finality of these assessments by taking recourse to the provisions contained in section 14(4)(cc) which came into force long after the assessments became final. The assessee accordingly pleaded before the Tribunal that the orders passed by the assessing authority invoking the provisions of section 14(4)(cc) of the Act were without jurisdiction. 6.. The Tribunal considered the pleas raised by the assessee. It refused to accept the first content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment and assess the turnover so determined; (b) assess the correct amount of tax payable on the turnover that has been under-assessed; (c) assess at the correct rate the turnover that has been assessed at a lower rate; (cc) assess the correct amount of tax payable, in a case where any deduction or exemption has been wrongly allowed; (d) levy the licence fee after determining to the best of his judgment the turnover on which such fee is payable; (e) levy the registration fee that has escaped levy; or (f) levy the correct amount of licence fee or registration fee in a case where such fee has been levied at a rate lower than the correct rate. In addition to the tax assessed or fee levied under this sub-section, the assessing authority may also direct the dealer to pay a penalty as specified in sub-section (8)." A scrutiny of the above provisions would show that basically the provisions contained in sub-section (4) come into operation to set right escapement of turnover, etc., in the original assessment. Prior to the Andhra Pradesh General Sales Tax (Amendment) Act 14 of 1978, which came into force from 17th January, 1978, no power was conferred on the assessing autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act 16 of 1963, it was not open to the assessing authority to issue a notice after the coming into force of Act 16 of 1963, as by that time the assessment was already completed and had become final. The decision in the aforesaid case directly covers the matter under consideration in favour of the assessee. 11. The principle is well-settled that if the right of an assessing authority to reopen an assessment is barred under the law for the time being in force, no subsequent enlargement of the right can revive such right in the absence of express words or necessary intendment. Please see the decision of the Supreme Court in S.S. Gadgil v. Lal Co. [1964] 53 ITR 231, the decision of the Bombay High Court in A.N. Mafatlal v. Deputy Controller of Estate Duty [1968] 67 ITR 449 and the decision of the Supreme Court in J.P. Jani, I.T.O. v. Induprasad Devshanker Bhatt [1969] 72 ITR 595. It is not necessary to multiply the authorities, as the above principle is well-settled. In the present case, the assessing authority did not think it fit to modify the assessments already completed by invoking any other provision contained in section 14(4) of the Act. This, by necessary implication, mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing authority loosely employed the word "exemption" while excluding the turnover consisting of supplies of wheat products to the nominees of the Director of Civil Supplies. The fact, however, remains that there was neither a claim for exemption under any provision of law of such supplies, nor did the assessing authority purport to allow any exemption wrongly. All that could be said was that the assessing authority accepted erroneously the claim that the supplies of wheat products by the assessee to the nominess of the Director of Civil Supplies did not constitute "sales" at all under the Act. It is this erroneous decision that required modification by recourse to section 14(4) of the Act. 13.. We may now examine the provisions contained in section 14(4)(cc) of the Act. It envisages a case where any deduction or exemption has been wrongly allowed, power is conferred on the assessing authority to assess the correct amount of tax payable in such a case. This provision applies only to cases where a deduction or exemption has been wrongly allowed by the assessing authority. In the present case, there was neither a claim for deduction in the original assessment, nor was any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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