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TMI Blog2015 (7) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 40 of the HGST Act read as under:- "31. Reassessment of tax - If in consequence of definite information which has come into his possession, the assessing authority discovers that the turnover of the business of a dealer has been under assessed, or has escaped assessment in any year, the assessing authority may, at any time within three years from the date of final assessment order and after giving the dealer a reasonable opportunity, in the prescribed manner, of being heard, proceed to reassess the tax payable on the turnover which has been under assessed or has escaped assessment." "40. Revision- (1) The Commissioner may on his own motion call for the record of any case pending before, or disposed of by, any officer appointed under sub-section (1) of section 3 of the Act to assist him or any Assessing Authority or Appellate Authority, other than the Tribunal, for the purposes of satisfying himself as to the legality or to propriety of any proceedings or of any order made therein and may pass such order in relation thereto as he may think fit: Provided that no order, shall be so revised after the expiry of a period of five years from the date of the order: Provided furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be maintained in the normal course of business. It is also important to note that the order states that there was some difference in sales in the return filed and in the books produced and that the appellant had furnished a reconciliation statement for the purpose of assessment. It is equally important to note that the Assessing Authority expressly stated that the account books of the dealer had been examined in detail and that the assessment order was passed keeping in view the same. The case was filed with a 'nil' demand as the Assessing Officer found the gross turnover to be almost entirely in respect of the exports. A similar order was passed by the Assessing Authority under the Central Sales Tax Act, 1956. The order records that after allowing for the export claim no taxable turnover was left for the purpose of assessment and the case was filed ending in 'nil' demand. 5. This brings us to the disputed action initiated and taken by the Deputy Excise Taxation Commissioner under Section 40 of the HGST Act. By a notice dated 20.02.2003, addressed to the appellant, the revisional authority stated that he had examined and inspected the record for the said assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st two years were passed even before the judgment of the Delhi High Court. The Tribunal noted that while passing the assessment order dated 10.6.2002 for the assessment year 2000-01, the Assessing Officer had obviously not noted the above judgments. On merits, it was admitted that in view of the judgment of the Supreme Court, which we will shortly refer to, the appellant was liable to pay tax in respect of the sale of DEPB. The only question urged before us was that even so it was, at the highest, a case for re-assessment under Section 31 and not for revision under Section 40. 10. Mr. Gupta, however, submitted that there is a clear demarcation between the powers under Section 31 and Section 40 of the HGST Act. In this regard, he relied upon a judgment of this Court in Haryana Agro Industries Corporation Limited vs. State of Haryana and others, [2002] 125 Sales Tax Cases 18 (P&H). The Division Bench held:- "8. A conjoint reading of the provisions quoted above shows that while section 31 speaks of reassessment of tax, section 40 provides for revision. Under section 31, the Assessing Authority can reassess the tax payable on the turnover which has been underassessed or has escaped a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment which is the exclusive preserve of the Assessing Authority. In view of this, we are inclined to agree with Shri Sawhney that the notices issued by respondent No.2 under section 40 of the Act were ultra vires of the powers of the said respondent and on that ground alone the impugned orders are liable to be quashed. ....... ....... ........ ......... 13. In Bidar Sahakar Sakkare Karkhane Ltd. v. State of Karnataka [1985] 58 STC 65, a division the Bench of Karnataka High Court interpreted sections 12-A and 21(2) of the Karnataka Sales Tax Act, 1957 and held as under: "The revisional power cannot be exercised in respect of a matter which falls within the power to reassess escaped turnover. The revising authority, in other words, should not trench upon the powers which are expressly reserved to the assessing authority under section 12-A of the Karnataka Sales Tax Act, 1957. the Deputy Commissioner, in exercise of his revisional jurisdiction, should not ignore that limitation. It is clear from the provisions of section 12-A of the Act that the reason for the turnover escaping assessment is immaterial. It might be by oversight, mistake or by design. If the record reveals no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Appellate Authority." Mr. Gupta also relied upon the notice in that case, which was extracted in the judgment, and contended that the wording thereof was similar to the wording of the notice in the present case dated 20.02.2003. He relied upon paragraph-17 of the Division Bench judgment where the Division Bench held that notice did not even advert to the relevant provisions of the Act else it would have indicated that the proposed action was being taken on account of a particular illegality or impropriety. 11. The question whether the assessment order suffers from any illegality or impropriety in the present case at least is one of fact. The Tribunal construed the assessment order in detail and came to a positive finding that the assessment order was passed on account of a mistake of law and that the Assessing Authority had, in fact, considered the entire record and had not brought to tax the sale proceeds on account of the sale of DEPB in view of the legal position as he perceived it to be. We were, in fact, informed that prior to the assessment order, the proceeds for the sale of DEPB were not brought to tax in the case of most of the assessees. The point was first decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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