9911796707
TMI Blog1994 (7) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... 985 only filed by the State. We may notice the facts giving rise to these tax revision cases. The assessee is a biscuits manufacturing company. The turnover of the assessee for the assessment year 1979-80 was determined by the assessing authority at about rupees six crores after granting exemptions of rupees six crores on November 20, 1980. It appears that the successor Commercial Tax Officer inspected the business premises of the assessee on December 7, 1980, April 3, 1981 and on April 8, 1981. On the basis of the material collected during the inspection, the assessing authority issued a show cause notice as to why the assessment should not be reopened in regard to the exempted turnover relating to the assessment year 1979-80. He also proposed not to allow those exemptions for the assessment year 1980-81 as by that time the assessment for that year was not completed. The assessee filed its objections. The assessing authority rejected the objections and assessed the disputed turnover to tax. That order of the assessing authority was upheld by the appellate authority. The assessee carried the matter in second appeal to the Sales Tax Appellate Tribunal. On August 29, 1984, the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, charging or payment of interest, compounding of offences and treatment of documents furnished by a dealer as confidential, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the power can be exercised. We are not concerned with the question of limitation here. From the above provision, two things are very clear, i.e., the assessing authority has power to re-determine the correct turnover to the best of his judgment and to assess the tax payable on the turnover so determined. We may incidentally note the provisions of section 14(4)(cc) of the APGST Act here: "(cc) assess the correct amount of tax payable, in a case where any deduction or exemption has been wrongly allowed." The above extracted provision specifies one of the events in which the whole or any part of the turnover of the business of a dealer which has escaped assessment to tax or has been under-assessed or assessed at lower rate, among other things, can be correctly assessed and the tax can be collected thereof. Where the assessing authority has wrongly exempted whole or part of the turnover or made any deduction not permissible, clause (cc) of sub-section (4) of section 14 specifically empowers the assessing authority to assess the correct amount of tax payable. What is contended before us by the learned counsel for the assessee is that such a specific power is lacking either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under-assessed or has been assessed at lower rate, observed: "...............The reason being immaterial, it is of no consequence whether what happened was a mere change of opinion on the part of the succeeding officer from that formed by his predecessor. The reassessment in such a case would be valid even if the materials, on the basis of which the earlier officer and the successor officer proceeded, were practically the same. " In Deputy Commissioner of Sales Tax v. T.P. Elias [1993] 90 STC 25 opinion to the same effect is expressed by another Division Bench of the Kerala High Court. In State of Andhra Pradesh v. Sreenivas Trading Co. [1989] 75 STC 206, the question before the Division Bench of our High Court was whether the power of the authority to reopen the assessments in cases where turnover has escaped assessment or in cases where turnover has been under-assessed includes the case of deduction of turnover due to the fact that exemptions were wrongly allowed. In that case, certain turnover was under-assessed due to granting of exemptions which were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to correctly determine the turnover and assess the turnover escaped, we have to see whether there has been any fresh material before the assessing authority to reopen the assessment and assess the escaped turnover to tax. The learned Government Pleader vehemently contends that the successor assessing authority had collected material on inspection which shows that the sales do not relate to mere consignment of the goods to the branch offices at different places, but they relate to inter-State sales. We are not concerned here with the nature of the sales. The short question which we may have to determine here is whether there was any fresh material before the assessing authority to reopen the assessment, for it is well-settled that mere change of opinion is no ground to reopen the assessment. As pointed out earlier, the learned Government Pleader invited our attention to the fact that the successor assessing authority had made inspection of the branches and head office of the assessee and collected material which shows that there has been a fresh material which necessitated change of opinion. We are unable to accept this contention in view of the finding of fact recorded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement from one State to another. There is no dispute that there has been movement of goods from one State to another. Prima facie, it is an inter-State sale within the meaning of section 3. Section 6-A provides that where any dealer claims that he is not liable to pay tax under the Act (CST Act), in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and he is entitled to furnish to the assessing authority a declaration duly filled in and signed by the principal officer of the other place of business or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form which has to tie obtained from the prescribed authority and that should be accompanied by the evidence of despatch of such goods. The assessing authority is given power to make an order to the effect that the particulars contained in the declaration furnished by the dealer a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
