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TMI Blog2017 (12) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... at sub-section by the Assessing Authority only. It is to be invoked in all cases, where, a statutory functionary under the Act assumes jurisdiction to assess the escaped turnover. Therefore, it was held that, in passing an original order of assessment, the Board exceeded its powers under Section 34, and that the order was also passed beyond time. Therefore, the order was held to be unenforceable in law. Petition allowed - decided in favor of petitioner. - W.P.No.45412 of 2006 & M.P.No.2 of 2006 - - - Dated:- 15-11-2017 - T. S. Sivagnanam, J. For Petitioner : Mr.S.N.Kribanandam For Respondent : Mr.S.Kanmani Annamalai ORDER Learned counsel on either side agreed that the issue involved in this writ petition is squarel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year 1999-2000, dated 10.06.2004, and curiously enough, the allegations, that are made in the present impugned notices were contained in the said earlier notice also. 14. Thus, the pattern adopted by the first respondent is identical to that of the pattern adopted by the respective Assessing Officers for either earlier or subsequent assessment years. Hence, the first respondent had no new material to come to the conclusion that the assessments have to be re-opened, as it is prejudicial to the interest of the Revenue, and he forms such opinion on enquiry being made. If that is the factual position, then, obviously, the first respondent cannot exercise the powers, what could not have been done by the Assessing Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it was held that, in passing an original order of assessment, the Board exceeded its powers under Section 34, and that the order was also passed beyond time. Therefore, the order was held to be unenforceable in law. 16. Following the decision rendered in the case of A.Velayutha Raja (cited supra), the Hon'ble Division Bench, in the case of Reliance Motor Company Private Limited (cited supra), while examining the power of the Joint Commissioner under Section 34 of the TNGST Act to bring the escaped turnover to tax, when it was neither a subject matter of assessment proceedings nor appellate proceedings, it was held that, 'even if the Joint Commissioner could otherwise have brought the escaped turnover to tax for the first ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TNGST Act, 1959, the Joint Commissioner can revise the order passed by the authorities below only on the basis of the materials available on record. The Hon'ble Division Bench held that the Joint Commissioner cannot rely upon the extraneous materials, which were not on record before the order was passed by the lower authorities. 19. In the instant case, the material sought to be relied upon was available with the Assessing Officer for the relevant assessment year. As noticed, the Assessing Officer himself, in the subsequent assessment orders has referred to the very same materials, which are contained in the earlier notice, and hence, the impugned notices are unsustainable. One more important factor to be noted is that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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