9911796707
TMI Blog1996 (7) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.. A common question of law arises in T.R.C. No. 259 of 1988 and T.R.C. No. 260 of 1988, that is, whether the successor assessing authority was justified in withdrawing the exemption and assessing the disputed turnover relating to the alleged second sales of cement gunny bags. 3.. We may note the facts relevant for consideration of the aforesaid question. For the years 1978-1979 and 1979-1980 the order of assessment was passed by the assessing authority on September 10, 1980. However, the successor-in-office noticed that exemption, on the alleged second sales of cement gunny bags, was wrongly granted; he, therefore, after issuing notice to the petitioner, passed revised orders of assessment on December 21, 1982. We may also note here t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desh [1995] 97 STC 442 (AP) that for the purpose of invoking the jurisdiction under section 14(4)(cc) of the Act what is relevant is that there should be fresh material, de hors the material available at the time of first assessment, to justify the invoking of jurisdiction for reopening the assessment. Lack of diligence on the part of the assessing authority while passing order of assessment earlier, is no ground to reopen the assessment. What is to be shown is that there was lack of material at the time of first assessment and that is supplemented subsequently which necessitated invoking the jurisdiction under section 14(4)(cc). In this case, admittedly, there is no fresh material to justify invoking of jurisdiction under section 14(4)(cc) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negatived on the basis that the certificate required under rule 45(3)(b) of the A.P. General Sales Tax Rules, 1957 was not filed and the sale by the petitioners was treated as first sales. Justice Kondaiah, J. (as he then was) held that under section 7-A of the A.P.G.S.T. Act, the onus was on the petitioner to establish that the transactions which were sought to be taxed by the assessing authority on the assumption that they were first sales were really second sales within the State. The learned Judge, with reference to certificate referred to in rule 45(3)(b) of the Rules, observed that for proving that the sale was a second sale of the goods in respect of which tax has already been paid once, the method provided in rule 45(3)(b) was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were second hand bottles itself was sufficient to hold that there was an earlier sale of the same bottles liable to tax and in that view of the matter set aside the order of the Tribunal and allowed the revision. To the extent the Karnataka High Court has impliedly held that not filing of the certificate as contemplated in the rule does not ipso facto enable the assessing authority to include the disputed turnover in the assessable turnover and that it was still open to the assessee to prove that the turnover in question related to second sales by producing other relevant oral or documentary evidence, we are in respectful agreement. But we are unable to pursuade ourselves to subscribe to the view that the fact that the goods are second h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an agent in three States, namely, Andhra Pradesh, Karnataka and Maharashtra. There is no proof of the fact that the cement gunny bags were subjected to tax on the first sale within the State. The list of the hawkers were also not identifiable. Therefore, the tests laid down by this Court and subsequently approved by this Court in Thungabhadra Industries Ltd. case [1986] 62 STC 71; (1986) 2 APSTJ 69, are not satisfied. The Tribunal, in its order under revision, held that in the circumstances such credence could not be given to the claim that the entire disputed turnover related to cement bags collected within the State of Andhra Pradesh itself and that the assessee failed to establish that the purchases of empty gunny bags were made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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