9911796707
TMI Blog1992 (8) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity, the assessing officer determined the total and taxable turnover of the appellants at Rs. 21,22,437 and Rs. 10,96,962 respectively. The assessment was one made to the best of judgment and while levying a tax of Rs. 34,670, penalty under section 12(3) of the Tamil Nadu General Sales Tax Act, 1959, hereinafter referred to as the Act at one and half times tax due on the suppressed turnover was also levied. 3.. Aggrieved, the appellants filed an appeal before the Appellate Assistant Commissioner, Salem. The said appellate authority allowed the claim of the appellants in respect of the estimated sales of groundnut oil from out of inter-State purchases of kernel to the tune of Rs. 22,050 and similar estimate in respect of oil cake on the said category of purchase to the tune of Rs. 6,061. So far as the addition made on the basis of the slips to the tune of Rs. 2,55,107 as representing the first purchase of groundnut and groundnut kernel locally and 10 per cent further addition towards possible omission and suppression to the tune of Rs. 25,510 is concerned, the appellate authority confined the additions based on the slips recovered in relation to the purchase omissions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t incumbent) once again appears to have noticed a further error in the order of the first appellate authority dated October 26, 1978 and invoked his powers of suo motu revision for the second time in respect of the very same order, and issued a notice, dated October 5, 1982 and after considering the objections and hearing the authorised representatives of the appellants, confirmed the proposals by his order, dated July 11, 1983. The above proposals which were confirmed ultimately by the Joint Commissioner related to the deletion ordered by the first appellate authority in respect of a turnover of Rs. 22,050 representing the estimated sales of groundnut oil obtainable from inter-State purchase of kernel and estimated sales of groundnut cake obtainable from the said inter-State purchase of groundnut kernel to the tune of Rs. 6,061. Aggrieved, the appellants have filed a tax case, T.C. No. 25 of 1984. 6.. Mr. E.S. Kunchithapatham, learned counsel appearing for the appellants, contended, so far as T.C. No. 25 of 1984 is concerned that (a) the exercise of suo motu powers under section 34 of the Act is hit by the prohibition contained in section 34(2)(b) of the Act in that the Joint Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sufficient reasons and placed reliance on relevant materials available from the relevant assessment record itself and that no exception could be taken to the orders passed by the Joint Commissioner on January 25, 1982. 8.. We have carefully considered the submissions of the learned counsel appearing on either side, in the light of some of the earlier decisions of courts referred to before us. So far as the plea based upon section 34(2)(b) of the Act is concerned, we are of the view that the embargo in that provision has no application to the case on hand. Sub-section (2) of section 34 mandates that the Joint Commissioner shall not initiate proceedings against any order or proceeding referred to in sub-section (1) of section 34 if the order sought to be revised has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court, such revision to this Court being the next available remedy in the hierarchy as against the order of the Appellate Tribunal. So far as the case before us is concerned, the order sought to be revised by the Joint Commissioner in his proceedings dated July 11, 1983, is only that of the Appellate Assistant Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfers a power or imposes a duty then the power may be exercised and the duty shall be performed from time to time as occasion requires. So long as the order dated July 11, 1983, does not involve any review or modification of the earlier order dated January 25, 1982 and operate in different areas and relate to distinct and separate matters of consideration, there can be no disability whatsoever disentitling the Joint Commissioner in invoking the suo motu powers of revision more than once to bring to tax different aspects or item of turnover. The first point of challenge in T.C. No. 25 of 1984 consequently fails and shall stand rejected. 9.. As for the second ground of attack in T.C. No. 25 of 1984 is concerned, we are of the view that it is well founded. The assessing officer came to the conclusion from the return of some of the letters sent by the department to the agriculturists-purchasers that the sales claimed to have been made to agriculturists must have been merely manipulation of records to avail the benefit of exemption. The first appellate authority carefully considered the records and the nature of the entries in the bills and the explanation of the appellants and held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy reliance on the decision of a Division Bench of this Court in Reliance Motor Company Private Ltd. v. State of Tamil Nadu [1992] 84 STC 201 to contend that the Joint Commissioner had no jurisdiction under section 34 to bring to tax for the first time turnover which has allegedly escaped assessment when it was neither the subject-matter of assessment proceedings nor appellate proceedings and that even if he is considered to have such a power it should conform to the period of limitation prescribed in section 16(1) of the Act. We are of the view that the decision in that case should be considered as having been rendered in the peculiar circumstances of that case and not as laying down any principle of general application and at any rate to a case like the one before us. As could be seen from para 3 of the decision reported in [1992] 84 STC 201 (Mad.) (Reliance Motor Company Private Ltd. v. State of Tamil Nadu), the assessee in that case appears to have been assessed by the assessing officer by an order dated October 30, 1976. An appeal filed as against a part of the turnover before the first appellate authority was allowed by the said authority on October 6, 1978 and the total an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67 in the following terms: Likewise, the decision in Velayutha Raja v. Board of Revenue (C.T.) [1970] 26 STC 176 (Mad.) seems to have been rendered in the context of the exercise of suo motu powers of revision alone of the Board of Revenue and that too without reference to an earlier decision of a co-ordinate Bench of this Court to which one of the learned Judges (Ramaprasada Rao, J.) was also a party and to which a reference will be made hereinafter. The view expressed in the said decision that the provision as to the period of limitation within which escaped turnover can be brought to tax as provided in section 16(1) of the Act equally applies when such an order is sought to be passed by the Board in exercise of its powers under section 34 of the Act, in our view, needs to be confined to the peculiar facts and circumstances of the case and not as an invariable proposition of law of general application for the simple reason that such a construction would be diametrically opposed to the scheme of the provisions of the Act, the distinct and separate nature, character and scope of powers of the various authorities as well as their object. It is one thing to state that a particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority while confirming the suppressions only reduced the quantum as against the said category of turnover to Rs. 1,17,993.10. This was really the actuals of the suppressions as borne out by the slips recovered and in sustaining the levy to that extent the appellate authority also relied upon the admissions made by the appellants before the inspecting officers that the transactions noted in the anamath slips recovered related to purchase of groundnut from the villagers and the slips gave all the relevant details of individual purchases made on different occasions. Therefore, it cannot be said that this turnover was not the subject-matter of the order of assessment or that of the appellate authority. Since the authorities below did not pursue the matter further and abruptly abandoned their duties and obligations to enquire into and consider the manner and method of the disposal of the stock so held to have been acquired, the Joint Commissioner considered that the orders of the authorities below suffered an error to that extent inasmuch as the assessees failed to disclose or prove that they have sold the said stock only as kernels in their turn, and therefore taking into account their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision reported in Padmavathi v. State of Tamil Nadu [1979] 44 STC 446 (Mad.) while considering the scope of sections 16 and 32 (the revision by the Deputy Commissioner is analogous to section 34) it is held as follows: .....the two sections are mutually exclusive and give different powers to different authorities. Therefore, if action could be taken under one section, it does not follow that action could not be taken under the other. Where it is possible to act under two provisions, the department may resort to the one instead of the other and it cannot be compelled to proceed under only one of the two provisions. Section 32 provides for the examination of the order passed by a subordinate authority under certain provisions set out therein. So long as the jurisdiction is exercised with respect to an order contemplated by the section, there would be no error in the exercise of jurisdiction. The Division Bench also held on the relative scope of sections 16 and 34 in the following terms: On a consideration of the above decisions, we are of the view that sections 16 and 34 of the Tamil Nadu General Sales Tax Act are independent and the limitation prescribed under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and groundnut cake and would have sold them. The general plea that they do not have their own oil mill for crushing the groundnut kernel has no meaning or sense in the light of the indisputable position that they are dealers in groundnut oil and oil cake and they could reasonably be presumed to have crushed the groundnut kernel into oil and oil cake and sold the same particularly when it is not necessary that they should have their own mill to crush the groundnut kernel into oil or oil cake. The presumption drawn by the Joint Commissioner in exercise of his suo motu powers, could not, on the peculiar facts and circumstances of the case, as reflected from the materials available in T.C. No. 77 of 1984 be said to be either patently illegal or palpably wrong or demonstrably perverse so as to call for the interference of this Court in these appeals. The learned counsel for the appellants also placed reliance in this regard on the unreported decision of this Court in State of Tamil Nadu v. Kaveri Oil Seeds Processing Co., Theni (T.C. No. 1424 of 1980 dated March 17, 1981). That was a case where this Court confirmed the factual findings arrived at by the Appellate Tribunal, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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