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TMI Blog2002 (12) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... icer conducted sales observation on 15.12.1989 and 6.3.1990. Having regard to the several defects, it was proposed to reject the returns and accounts as incorrect and incomplete and to determine the total taxable turnover according to the best judgment assessment. The sale on 15.12.1989 was Rs.3,514.75 and on 6.3.1990 was Rs.1,900.15. The average sale per day was worked out to Rs.2,708/- and the total sale for the year was worked out to Rs.9,83,004.00. It was found that all the purchases of provisions were made from unregistered dealer and not even a bought note, was prepared and produced. The Assessing Authority treated the purchases suppression of Rs.7,157/- as monthly purchases and multiplied the same by 12 for the entire year. Thus, the Assessing Authority arrived at a figure of Rs.90,884/-. He proceeded to assess the purchases at the appropriate rate by bringing the taxable turnover to Rs.10,73,888/-. As against that order, the writ petitioner filed an appeal before the first appellate authority-the Appellate Assistant Commissioner. The Appellate Assistant Commissioner held that the determination of Rs.9,83,004/- as sales turnover for the entire year was perfectly justified. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal is challenged in the Writ Petition No.4626 of 2002 . 3.When the appeal was pending before the Special Tribunal, the petitioner filed O.P.714 of 1998 challenging the correctness of the order of the first Appellate Authority-Appellate Assistant Commissioner dated 7.8.1991, sustaining the order of assessment in respect of sales turnover in a sum of Rs.9,83,004/-. The Special Tribunal has dismissed the O.P on the ground that the order sought to be questioned in the O.P was taken on revision and orders were passed after hearing the petitioner. As against that order, the petitioner filed a statutory appeal before the Special Tribunal and obtained a stay order therein. Therefore, the O.P directed against the Appellate Assistant Commissioner is no longer suvives. The said order has been impugned in W.P.No.4 625 of 2001. 4.Mr.Murali Kumaran, learned counsel for the petitioner vehemently contended that even after the amendment introduced to Section 34 of the Act, whereby the provision has been modified to the effect that the Joint Commissioner could invoke the suo motu power only when he considered that the order of the Appellate Assistant Commissioner was prejudicial to the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided with an appellate remedy under Section 31, a second appellate remedy under Section 36 and Revisional remedy before the Special Tribunal under Section 38 of the Tamil Nadu General Sales Tax Act. Even if the assessee considered that the assessment order contained error apparent on the face of the record, he could invoke the provisions under Section 55 of the Act to rectify the errors. But if an order of assessment has been erroneously framed to the prejudice of the Revenue, there is no provision, which authorises the Revenue to take the matter on appeal. Hence as seen from Section 34, the suo motu revisional power is exclusively given to the Joint Commissioner to revise the order or proceedings recorded by the statutory authorities under Sections 4A, Section 12A, Section 14, Section 15 or sub-section (1) or (2) of Section 16 or an order passed by the Appellate Assistant Commissioner under subsection (3) of Section 31 or by the Appellate Deputy Commissioner under sub-section (3) of Section 31-A or by the Deputy Commissioner under sub-section (1) of Section 32 or sub-section (3) of Section 33, if such order or proceedings recorded is prejudicial to the interest of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, by which the taxable turnover was arrived at more than Rs.10,00,000/- over and above the exempted limit, he filed an appeal before the appellate authority. Though the appellate authority has confirmed the sales turnover, which confirmation is against the interest of the assessee, however, reduced the purchase turnover thereby the taxable turnover was reduced to below Rs.10,00,000/- ,the exempted limit. Having regard to the exemption granted from payment of tax upto the turnover of Rs.10,00,000/- the assessee was not liable to pay tax. Hence he has not taken the adverse finding confirmed by the appellate authority in appeal. The need to agitate the adverse finding arose only when the order of appellate authority was taken in Revision suo-motu. Though the argument seems to be somewhat appealing on the first blush, if we construe the appellate provisions under Sections 31 and 36, the right of appeals are not restricted to the event of payment of tax arose. If the assessee is not accepting to the finding even when no tax liability arises, he can appeal against that finding. If the contention of the assessee is accepted that would amount to enlarge the scope of the provision of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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