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TMI Blog1998 (7) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioner in terms of the notice under section 9(2) of the Act, 1956 produced the books of account. Respondent No. 2, the concerned Superintendent of Taxes, made assessment under section 9(3) of the Act, 1956 by his order dated January 9, 1985. The assessing officer also accepted the sales as correct and complete in the absence of any information to the contrary. By notice dated March 15, 1989, the respondent No. 3, the Assistant Commissioner of Taxes, under section 20(1) of the Act, 1956, informed the petitioner about his proposal to pass order for enhancement of assessment orders on the total turnovers for the periods ending September 30, 1983, March 31, 1984, September 30, 1984, March 31, 1985, September 30, 1985, March 31, 1986, September 30, 1986, March 31, 1987 in order to get the due revenue on the ground that the orders of assessment in the relevant periods appeared to be erroneous in so far as it was prejudicial to the interest of revenue. The petitioner/firm was accordingly served with the above notice to appear before the respondent No. 3 and explain its position. The petitioner responded to the notice and submitted its reply to the show cause before respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid, led me for examination of the assessment orders, passed by the assessing officers in respect of the onion dealers of those periods covered by the years in question." In pursuance of the directions contained in the above impugned order, the assessment orders were revised. For the aforesaid four periods, orders of assessment were passed under section 9(3)/20(1) of the Act, 1956 read with section 74(2) of the Assam General Sales Tax Act, 1993 as a result of which the demand of tax was raised for the said periods and penal interest were also levied on the petitioner. The petitioner/firm preferred appeals before the respondent No. 4 against the revised assessment order as well as the suo motu order of revision dated December 17, 1990 and the respondent No. 4, Deputy Commissioner of Taxes (Appeals), by his order dated November 8, 1993, dismissed the appeals as being not maintainable. Hence this writ application challenging the order dated December 17, 1990, passed by respondent No. 3 in exercise of suo motu power of revision under section 20(1) of the Act, 1956 as well as the consequential revised orders of assessment dated July 6, 1993 raising additional demand of tax and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Commissioner of Taxes, Assam v. Babubhai S. Patel [1970] 26 STC 7 (SC), Ganga Properties v. Incometax Officer [1979] 118 ITR 447 (Cal), Khemka Co. (Agencies) Pvt. Ltd. v. State of Maharashtra [1975] 35 STC 571 (SC). The learned counsel further referred to the decision in (1990) 1 GLR 44, Parashuram Pottery Works Co. Ltd. v. Income-tax Officer [1979] 106 ITR 1 (SC), Sirpur Paper Mills Ltd. v. Income-tax Officer "A" Ward, Companies Circle, Hyderabad [1978] 114 ITR 404 (AP), Additional Commissioner of Income-tax v. Mukur Corporation [1978] 111 ITR 312 (Guj), Russell Properties Pvt. Ltd. v. A. Chowhury, Addl. Commissioner of Incometax, West Bengal [1977] 109 ITR 229 (Cal) and Sirpur Paper Mills Ltd. v. Commissioner of Wealth Tax [1970] 77 ITR 6 (SC). Mr. Joshi, the learned counsel for the petitioners, lastly pointed out to the limits and scope of revision. The learned counsel submitted that the power of suo motu revision can be exercised only when the order is erroneous in so far as it is prejudicial to the interest of revenue. 5.. Mr. H.N. Sarma, learned Additional Senior Government Advocate appearing on behalf of the State/respondents on the other hand submitted that the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hink fit in the circumstances of the particular case. The concerned authority viz., the Commissioner, is authorised to make an enquiry or cause an enquiry to be made as he deems necessary. The authority is, thus conferred with the power to call for and examine the records in a proceeding and to make an enquiry to reach at a proper and just decision. For this purpose, the Commissioner is not necessarily to confine itself only to the records those were made available before the assessing authority. Sub-section (1) of section 263 of the Income-tax Act confers similar powers for suo motu exercise of powers of revision by the Commissioner. In the case of Ganga Properties v. Income-tax Officer reported in [1979] 118 ITR 447, the Calcutta High Court delineated the powers reposed on the Commissioner under section 263(1) of the Income-tax Act. According to the said decision, the Commissioner is authorised to call for and examine the "record of the proceeding" in order to consider in his revisional jurisdiction whether the order-inquestion passed by the ITO "is erroneous" and prejudicial to the interests of the revenue. 7.. To overcome the above controversy, section 263 of the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the audit objection. The decision of the Commissioner, as it appears from the order, was not affected by any of those debates. The Commissioner, however, fell into error on relying upon the market information and the report from the Department of Agriculture in determining the sale price. In the absence of any authentic material regarding sale price on the date of assessment, the Commissioner ought not to have acted on such information. The minimum rate and the maximum rate, as indicated by the Commissioner, which led him to arrive at a particular sale price/market price, cannot, therefore, be legally sustained. The revisional authority is required to act on materials on record. A decision to be sustained lawfully, is to be based on materials, otherwise the decision will suffer from the vice of perversity. The Commissioner is authorised to take any decision as he deems fit and is free to draw any inference from the facts available. He is, however, to act on factual material and not on conjectures, assumptions and presumptions, else the decision will suffer from the vice of perversity. In this case, the revisional authority in determining the price of onions referred to same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver at the rates specified in the Act, 1956 under section 3(1). The tax as aforesaid is payable at the stage of first sale of the taxable goods in Assam. Under section 8 of the Act, 1956, every registered dealer is required to furnish such returns of his turnover by such dates and to such authorities as may be prescribed. No return, submitted under the section, shall be valid unless it is accompanied by Treasury receipt showing payment of the tax due as provided in sub-section (2) of section 22 or in the case of sales covered by a notification under sub-section (5) of section 22 of the Act by such evidence as may be specified in the notification. Section 9 of the Act, 1956 contains the provisions for assessment. Tax payable under the Act is to be paid in the manner provided under sub-sections (2), (3), (4) and (5) of section 22 of the Act, 1956. Under sub-section (2) of the aforesaid section, before any registered dealer furnishes the returns required by section 8(1), he is required to pay in the prescribed manner into the Government Treasury the full amount of tax due from him under the Act on the basis of such returns, and is required to furnish along with the returns a receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the provisions of the Act, 1956 as referred to above, it thus appears that "tax payable" means the amount of tax as finally assessed as per ratio of the decision in J.K. Synthetics Ltd. v. Commercial Taxes Officer reported in [1994] 94 STC 422 (SC) and as per the statutory provisions. Tax payable, in this case also, will mean the amount of tax as finally assessed under the Act, 1956. Under the fact situation, therefore, the levy of interest also cannot be sustained. 13.. For the reasons stated above, the impugned order dated December 17, 1990, passed by the Assistant Commissioner of Taxes in suo motu exercise of revisional power directing fresh assessment by determining the sale price on the basis of the prevailing market rate during the periods in question-not lower than the minimum rate prevailed at that relevant period of time, is set aside. The order disallowing the shortage is, however, upheld. 14.. In view of the above, the consequent assessment orders for the periods mentioned as contained in annexure V series of the writ petition, passed by the Senior Superintendent of Taxes, Gauhati, Unit A, is set aside and direct the assessing officer to make fresh assessment as re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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