9911796707
TMI Blog1993 (4) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 173 of 1991 is filed against the order passed in T.A. No. 878 of 1989. 2.. We heard the revisions together. The short facts relevant for the purpose of determining the controversy in the cases are as follows: The respondentassessee is a dealer in aluminium vessels, steel vessels, etc. There was an inspection of the business premises on May 23, 1984. Excess and shortage of stocks were noticed. The irregularities noticed were admitted and the assessee compounded the offence departmentally on payment of Rs. 750. The assessee had reported a taxable turnover of Rs. 1,14,054. A pre-assessment notice was served by the assessing authority on November 14, 1986, proposing to reject the accounts and the returns for the year 1984-85 and estimati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice on December 2, 1986 and the estimate based on the revised pre-assessment notice dated December 2, 1986, is not sustainable in law. The first appellate authority, having found on facts that there was no material to review the original proposal, was in error in directing that the assessing authority should find out fresh evidence and complete the assessment on the basis of such materials. The Sales Tax Appellate Tribunal opined that having held that there was no reason or material to issue the revised pre-assessment notice dated December 2, 1986, the Appellate Assistant Commissioner was in error in directing the assessing authority to find out fresh evidence and to make a fresh assessment. In this perspective, the Appellate Tribunal held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal was in error in holding that the assessing authority had no power or jurisdiction to issue a revised preassessment notice dated December 2, 1986 and in holding that in the absence of fresh materials, the assessing authority was incompetent to do so. The Appellate Tribunal was in error in accepting the reasoning of the first appellate authority that for sending a revised pre-assessment notice, there should be fresh evidence or fresh material. It was open to the assessing authority to change its stand made in the earlier pre-assessment notice and there is no fetter in the assessing authority in issuing revised pre-assessment notice or notices. It is open to the assessing authority to change its original view and adopt a different view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issue of revised preassessment notice dated December 2, 1986, is unauthorised and improper and the first appellate authority having found so, should have set aside the assessment made on that basis, instead of ordering a remit and directing the assessing authority to find out fresh materials and then make an assessment. 6.. We considered the rival pleas urged before us. We are of the view that it is within the competence of the assessing authority to issue one or more pre-assessment notices. There is also no bar in cancelling a pre-assessment notice already issued and in sending a fresh notice. For the pre-assessment notice or notices issued by the assessing authority, there should be reason or basis. The assessee should also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modifying an earlier notice. The circumstances in which an earlier pre-assessment notice can be either cancelled or modified or a supplementary pre-assessment notice can be issued are not exhaustive. We have adverted to only certain instances which occurred to our mind readily. Without any one of the above salient aspects being present, it will not be open to an assessing authority to revise or modify or cancel a pre-assessment notice once issued. If such a carte blanche power or unguided or uncanalised power is conceded to an assessing authority, it will smack of arbitrariness. That will be unfair. That again will be against the guarantee envisaged by article 14 of the Constitution as held by the Supreme Court in Ajay Hasia v. Khalid Mujib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-assessment notice was issued. The facts disclose that the assessing authority has arbitrarily changed the method of estimation. Whereas, in the first pre-assessment notice, he proposed an addition of 50 per cent on the conceded turnover; even without verifying the accounts or appraising the events or circumstances, he issued a second pre-assessment notice proposing to revise the estimate at three times the average running stock of different items. This was so done at the ipse dixit of the assessing authority, based on no material or change in circumstances or evaluation of the facts of the case. In this view of the matter, the Appellate Tribunal was justified in holding that the Appellate Assistant Commissioner having found that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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