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TMI Blog1994 (8) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners are registered under the Madhya Pradesh General Sales Tax Act and the Central Sales Tax Act, 1956. The rate of sales tax on cooked food was 2 per cent from the enforcement of Act till September 30, 1978, as per Schedule II, Part I of entry No. 8 of the Act. From October 1, 1978, cooked food is defined in section 2(cc) of the Act. For the first time from October 1, 1978, mawa was excluded from definition of "cooked food". Section 2(cc) contains as under: "(cc) 'cooked food' includes sweets and sweetmeats, mishri, batasha, chironji, shrikhand, rabadi, doodhpak but excludes ice-cream, kulfi, ice-candy, non-alcoholic drinks containing ice-cream, cakes, pastries, biscuits, chocolates, toffees, lozenges, peppermint drops and mawa." 4.. The petitioners were charged at the rate of 2 per cent sales tax on mawa on the basis of decision given by Board of Revenue in the case of Regal Dairy, Mhow in Second Appeal No. 142/72 on September 13, 1972 [(1973) 4 VKN 314]. The Division Bench of this Court answered the reference under section 44 of the Act in favour of the assessee in M.C.C. No. 70 of 1977 [1981] 47 STC 374; (1981) 14 VKN 7 (Commissioner of Sales Tax v. Regal Dairy). This dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment is attributable to the dealer and the case is made out for imposition of penalty. 12.. It is noticeable that penalty is imposable only on concealment of turnover [1983] 52 STC 42 (MP) (Commissioner of Sales Tax v. Chhogmal Shankarlal). This provision of "omission" was substituted vide Act No. 25 of 1978 effective from October 1, 1978. It was not so from November 1, 1964 to September 30, 1978. 13.. Section 19(1) is not invokable at will. To illustrate, the question of assessment of packing material, i.e., iron hoops at 2 per cent and 3 per cent under entry iron and steel became final. It was thereafter not open to the assessing authority to reopen the same under section 19(1) on the ground that iron hoops were not covered by entry iron and steel and hence in the absence of "C" form this should have been taxed at 10 per cent [(1987) 20 VKN 198 (Commissioner of Sales Tax v. Manilal)] is pertinent. In other words the expression "for any reason", employed in section 19(1), has a restrictive meaning. 14.. Notices contain "reason" that levy of 2 per cent in the light of Gyanmal's decision [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB] is erroneous. Hence action i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explain the meaning of "cooked food" and principles of interpretation. 17.. The point, however, is whether "review", i.e., "reassessment" is permissible under section 19(1) on the ground of subsequent decision in another case. It is contended that Regal Dairy's decision [1981] 47 STC 374 (MP); (1981) 14 VKN 7 (MP) stands impliedly overruled by Gyanmal's decision [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB]. It is, however, conceded that with regard to taxability on mawa, Regal Dairy's case [1981] 47 STC 374 (MP); (1981) 14 VKN 7 (MP) is direct in point and is still sub judice in apex Court. Till reversal, law, as in force, for the relevant period is that mawa is a cooked food and covered by entry 8 of Part I of Schedule II to the Act. The view of the Board of Revenue was upheld. Effective from October 1, 1978, it is now made luculent by insertion of (cc) in section 2 that "cooked food" excludes mawa. One implication may be that it remained inclusive till September 30, 1978. 18.. Gyanmal's case [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB] does not say that mawa is not a "cooked food". All that is observed is that "sweeping interpretation of the entry" is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fully and truly disclose all the material facts necessary for the assessment. Both the conditions are conditions precedent to the exercise of the jurisdiction under section 147(a) read with section 148. This is so laid by this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer [1961] 41 ITR 191; AIR 1961 SC 372 and host of later decisions". 22.. I find that in the instant case "conditions" precedent to the exercise of jurisdiction under section 19(1) of the Act are non-existent and notices have been issued without due application of mind and without proper appreciation of subtle difference between sections 19(1) and 19-A of the Act. 23.. No individual can be seen lugged into proceedings which ex facie turn out to be futile and inutile. There is no lis like law v. justice. Between the two, there has to be harmony, not antinomy. 24.. Lord Denning in Seaford Estates v. Asher [1949] 2 All ER 155, observed that material of which the Act is woven is not alterable but creases may be ironed out. In other words, so far and not further. Such is not the necessity here. 25.. On March 19, 1987, this Court after hearing the matter for some time with reference to Regal Dairy's c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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