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TMI Blog2002 (10) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... alia, stating that during the assessment year 1989-90 the petitioner had purchased goods for Rs. 3,35,125.80, that the petitioner had conceded only a sales turnover of Rs. 2,34,200 that generally in bar attached hotels the sales turnover under restaurant section must be at least 1 times of the purchase value of goods used for the preparation of cooked food which is an acceptable norm in the line of business and that the turnover disclosed is nearly 70 per cent of the cost of goods only which is not acceptable. It is therefore stated in the notice that the turnover should have been fixed at Rs. 5,02,689 as against the conceded turnover of Rs. 2,34,200 and therefore it is clear that there is an escapement of turnover to the extent of Rs. 2,68,220 which has resulted in a short levy of sales tax, additional sales tax and surcharge Rs. 35,688. The petitioner filed his reply dated March 21, 1995 (exhibit P3). The petitioner had also raised an additional objection in respect of the assessment year 1989-90 that the reassessment is barred by limitation. According to the petitioner, the proposal for reassessment under section 19 of the Act in respect of the assessment year 1989-90 was drop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Act, in this case within the time provided for making reassessment under section 19 of the Act. The counsel in support of the said contention has relied on the decision of the Supreme Court in State of Kerala v. K.M. Cheria Abdulla and Company [1965] 16 STC 875 and the decision of the Karnataka High Court in Bidar Sahakar Sakkar Karkhane Ltd. v. State of Karnataka [1985] 58 STC 65 besides other decisions. 5.. The learned Government Pleader appearing for the respondents submitted that the power of the assessing authority under section 19 of the Act and of the Deputy Commissioner under section 35 of the Act are totally different powers, which are mutually exclusive also. He also submits that the Deputy Commissioner is entitled to invoke the supervisory power conferred under section 35 of the Act even to rope in escaped turnover provided the conditions specified in section 35, viz., that the order is vitiated by illegality, irregularity or impropriety are made out. He further submitted that the bar of limitation provided under section 19 of the Act cannot have any application for invocation of the provisions of section 35 of the Act and that for the application of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is not to be used in another field of jurisdiction, viz., the jurisdiction of the Sales Tax Officer to assess the escaped turnover under section 19 of the Act. 7.. The division Bench relied on the decisions of the Supreme Court in State of Kerala v. M. Appukkutty [1963] 14 STC 242, State of Kerala v. K.M. Cheria Abdulla and Company [1965] 16 STC 875, Swastik Oil Mills Ltd. v. H.B. Munshi, Deptuy Commissioner of Sales Tax [1968] 21 STC 383, Deputy Commissioner of Agricultural Incometax and Sales Tax v. Dhanalakshmi Vilas Cashew Co. [1969] 24 STC 491 and in State of Kerala v. K.E. Nainan [1970] 26 STC 251 and held that ".................the revisional power of the Deputy Commissioner is separate and distinct power; an independent jurisdiction; and that the two powers operate in two fields, so that they cannot overlap and the revisional power of the Deputy Commissioner cannot trench upon the power of the sales tax officer to assess escaped turnover. If it does, it oversteps its field and is thus beyond the Deputy Commissioner' s jurisdiction". Another Division Bench of this Court in C.C. Transport Company v. State of Kerala [1970] 40 STC 444 where a question arose directly with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment as follows: "17. We began the discussion of the question by recording our first impression on the statutory provision. The power of assessing escaped turnover and of revision are two distinct and separate powers. They have been conferred on two different authorities under sections 19 and 35, the latter power being conferred on a superior authority. An examination of the authorities has only confirmed our first impression." 8.. Thus the decision of the Full Bench is to the effect that there is no bar or inhibition against getting at escaped income in exercise of the revisional power, so long as the grounds for exercise of that power are made out, viz., that the order is vitiated by illegality, irregularity or impropriety. 9.. The Supreme Court in Bombay Ammonia Pvt. Ltd. v. State of Tamil Nadu [1976] 37 STC 517 held as follows: "In view of the above, we are of the opinion that the suo motu power of revision of the Deputy Commissioner is of wide amplitude and can be exercised in favour of the revenue as well as the taxpayer in order to correct any error or illegality committed by the assessing authority in his order of assessment". The Supreme Court in Deputy Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t invoke the provisions of section 35 of the Act for getting at escaped turnover as proposed in exhibit P5 notice and that even if the Deputy Commissioner has got any such power it is subject to the limitation provided for assessing the escaped turnover under section 19 of the Act by the assessing authority. 12.. In view of the principles laid down by the Supreme Court and by this Court discussed herein above, I am of the view that there is no merit in the said contentions taken by the petitioner. I accordingly dismiss this original petition. It is for the petitioner to file objections to exhibit P5 notice and for the second respondent to pass orders in accordance with law after considering the said objections. The petitioner will file its objections to exhibit P5 within a period of one month from today. In view of the fact that this is a matter of 1995 in respect of the assessment year 1989-90 I direct the second respondent to take a decision in the matter as directed above within a period of two months thereafter. Order on C.M.P. No. 9084 of 1995 in O.P. No. 5084 of 1995. Disposed of vide order dated October 18, 2002 in O.P. 5084 of 1995. Petition dismissed. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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