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TMI Blog2023 (2) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer on 31.03.1995 passed a revised assessment order under Section 16 of the TNGST Act, 1959, by including Rs.2,83,302/-, the money received as premium for the transfer of REP licence. In this order, the taxable turnover was assessed as Rs.1,28,95,181/-. This assessment is a composite assessment order inclusive of other sales already assessed vide order dated 15.11.1989. Against the revised assessment order dated 31.03.1995, the assessee preferred Appeal No.444 of 1995. In this appeal, apart from challenging the inclusion of Rs.2,83,302/- the premium received for transfer of licence as sales and assessed for sales tax, the non-exemption of Rs.1,41,11,136/- from tax, it being purchase of raw skins for export after process also challenged. 3. The Appellate Authority partly allowed the appeal taking into consideration the documents produced to claim exemption. A sum of Rs.1,34,52,521/- as against the claim of exemption of Rs.1,41,11,136/- was exempted from tax. The claim of exemption of the premium received for transfer of licence disallowed. No further appeal filed by the assessee against the disallowed portion. However, the Joint Commissioner suo motu has taken up the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 989. The proceedings indicates that after completion of assessment for the year 1988-1989, further scrutiny of the assessment filed, which disclosed that the dealer has received Rs.2,83,302/- towards REP licence. Since it has been judicially held that the sale of incorporeal asset like, REP licence would attract levy of tax, the escaped turnover of Rs.2,83,302/- received towards sale of licence attracts tax at 5% and therefore, it has been proposed to revise the assessment under Section 16 of the TNGST Act. 8. In the said proceedings, the dealer has filed objection, but the same was overruled and the escaped turnover of Rs.2,83,302/- was assessed to tax at the rate of 5%. While doing so, the taxable turnover of the year 1988-1989 at different rate has been assessed. Against the disallowed portion, appeal was filed before the appellate authority, who in his wisdom, has thought fit to grant exemption towards the value of the proceeds, purchase of raw skins from local source used on export sale, which according to him, runs to the tune of Rs.1,34,52,521/-. 9. This appeal is by the dealer, challenging the tax on his turnover to the tune of Rs.1,44,04,414/-. This was not the subject m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 16(1)(a) of the Act, in respect of each of the three years, 1972-73, 1973-74 and 1974-75 on March 13, 1979, April 2, 1979 and April 2, 1979, respectively, were confined only to the turnover that had escaped assessment and were confined to the assessment of the escaped turnover only. The said orders did not deal with the original assessments which stood concluded. the orders under section 16(1)(a), therefore, did not wipe off or take away the characteristic or operative force of the orders of original assessment. Therefore, it would be a travesty of law to hold that the orders made under section 16(1)(a) of the Act had set aside the original orders of assessment, which were not even under consideration referred to or included in the order under section 16(1)(a) of the Act. The order of refund of tax, already paid on the basis of the original order of assessment is, therefore, erroneous and cannot be sustained. The learned single Judge did not advert to, much less consider and discuss the facts and circumstances of this case while ordering the writ petitions and for what we have said above, we cannot agree with the judgment of the learned single Judge in the three writ petitions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 16(1)(a) of the said Act has also incorporated the earlier assessment order, merely for the sake of completeness. Unless the entire turnover is re-assessed in exercise of power under Section 16 (1) (b) of the said Act, the subsequent Appellate Authority cannot substitute his view contrary to the assessment regarding the turnover which has reached finality. Such substitution will amount to review of the earlier order. The power which the assessing authority thus exercises under Section 16(1)(a) of the Act is neither the power of revision nor the power of review. 13. The aforesaid point has been made very clear by the Division Bench in Ekambareeswarar Coffee and Tea Works case [cited supra] in the following words:- ''6. A mere glance at section 16(1)(a) shows that it empowers an assessing authority subject to the provisions of sub-section (2), at any time within a period of five years from the expiry of the year to which the tax relates, to determine to the best of its judgment the turnover which had escaped assessment and assess the tax payable on "such" turnover after making such enquiry as may be considered necessary and after giving the assessee a reasonable oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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