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TMI Blog2000 (10) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... get exemption from the turnover tax under S.R.O. No. 717 of 1988 the dealer has to produce evidence to the effect that the impugned turnover has suffered turnover tax. In the circumstances, the Deputy Commissioner in exercise of the power vested in him under section 35 of the Act by annexure C order set aside the assessment order dated September 19, 1997 and remanded the case to the assessing authority for fresh disposal according to law. This order was challenged by the assessee in appeal before the Sales Tax Appellate Tribunal, Additional Bench, Kozhikode. The Tribunal agreed with the view taken by the Deputy Commissioner and dismissed the appeal. The revision is filed against the said order. 2.. The main contention taken by Sri P. Balachandran, learned counsel for the revision-petitioner, is that the order passed by the Deputy Commissioner under section 35 of the Act was beyond the period of limitation specified in the said section itself and therefore the order, annexure C, passed by him is barred by limitation and without jurisdiction. According to the revision-petitioner, the period of four years has to be reckoned from the date of the original assessment order passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the order has been made the subject-matter of an appeal to the Appellate Assistant Commissioner or the Appellate Tribunal or of a revision in the High Court, he cannot pass an order under sub-section (1). However, sub-section (2A) provides that the Deputy Commissioner may pass an order under sub-section (1) on any point which has not been decided in an appeal or revision referred to in clause (b) of sub-section (2), before the expiry of the period of four years referred to in clause (c) of that sub-section, whichever is later. In view of the aforesaid provisions the first thing to be considered is as to whether there has been an appeal against the original order passed by the assessing authority and if so whether the omission contemplated in section 35 was the subjectmatter of the said appeal. If it was the subject-matter of the said appeal, it was not open to the Deputy Commissioner to invoke section 35 by virtue of the provisions of clause (b) of sub-section (2) of section 35, for, even sub-section (2A) does not save the situation. If, on the other hand, it is found that the issue which is sought to be corrected by invoking the provisions of section 35 was not the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant portion of the appellate order is extracted below: "I find that the appellant had tersely raised this issue before the assessing authority through the reply dated August 24, 1993 to the pre-assessment notice. But, strangely enough, the assessing authority has not made in the assessment order even a casual reference to this important disputed issue. This stand of the assessing authority is neither reasonable nor justifiable. As the original authority he has to examine the issue in the light of the decision relied on by the appellant and take a decision thereon. For this purpose, the case has to go back to the assessing authority. As such, I leave open the other issues raised in the appeal. Accordingly, I do hereby set aside the assessment and remit the case to the assessing authority for de novo disposal in the light of the above observations and directions." 7.. The contention of the assessee, as already noted, is that the remand by the appellate authority is only for the limited purpose of considering the question regarding the inclusion of the turnover of purchase of arecanut, black pepper and dry ginger effected by the appellant in pursuance of the buying agenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the said order. It is only when the assessing authority passed the fresh order dated September 19, 1997 where the turnover tax has not been levied on a turnover of Rs. 1,97,48,510 the Revenue was aggrieved. In the above view of the matter, the Deputy Commissioner had acted well within his jurisdiction in invoking the provisions of section 35 of the Act. The Appellate Tribunal considered the matter and came to the conclusion that the appellate order setting aside the assessment resulted in an open remand and therefore the only order in force for the assessment year 1989-90 was the order dated September 19, 1997. 9.. The Supreme Court in Deputy Commissioner of Commercial Taxes v. H.R. Sri Ramulu [1977] 39 STC 177 had occasion to consider the question whether in the event of an order having been made under section 12A of the Mysore Sales Tax Act, 1957, what is the starting point for computing the period of four years mentioned in section 21(3) of the said Act for the exercise of powers under section 21(2). The question was as to whether the period of four years is to be calculated from the date of order under section 12A. Section 12A of the said Act gave power to the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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