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Karnataka Trading Co. Vs. Commercial Tax Officer, Ii Circle, Bangalore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 6003 of 1969
Judge
Reported in(1970)2MysLJ457; [1971]28STC144(Kar)
ActsMysore Sales Tax Act, 1957 - Sections 5(4) and 12-A
AppellantKarnataka Trading Co.
RespondentCommercial Tax Officer, Ii Circle, Bangalore
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateP.K. Shyamsundar, High Court Government Pleader
Excerpt:
.....statement recorded as per section 132 (4) of the act held, the said letter cannot be treated as a statement said to have been made under sub-section (4) of section 132 of the income tax act since the said letter is not recorded on oath by the authorised officer during the course of search or seizure. further, it is also not in dispute that return has to be filed in the pro forma prescribed under the income tax act. the letter is not in such pro forma, wherein a partner of the assessee has stated that a revised return would be filed claiming deduction under section 80 hhc and he had only requested not to initiate any penal action against the partners of the assessee. therefore, it is clear that solely relying upon the said letter, the assessing officer could not have passed an order of..........our view expressed in s.t.r.p. nos. 30, 31 and 32 of 1968 (since reported as a. misrimal jain & co. and others v. state of mysore [1971] 28 s.t.c. 137). therefore under section 12-a the respondent has no jurisdiction to assess the turnover exempted earlier. 5. in the result, this writ petition succeeds and the impugned notice dated 22nd march, 1969, is quashed. no costs. 6. petition allowed.
Judgment:
ORDER

Govinda Bhat, J.

1. The petitioner is a dealer carrying on business in coriander among other commodities. For the year ended 31st March, 1964, the petitioner's turnover in respect of coriander was Rs. 1,69,074.79. The Commercial Tax Officer who is the respondent, by his assessment order dated 16th March, 1965, exempted the aforesaid turnover from tax holding that coriander falls within the meaning of the term 'other oil-seeds' under section 5(4) read with entry No. 5(d) of the Fourth Schedule of the Mysore Sales Tax Act, 1957. On 22nd March, 1969, the respondent issued to the petitioner a notice under section 12-A of the Mysore Sales Tax Act proposing to bring to assessment the aforesaid turnover relating to coriander which had been exempted earlier. It is stated in the notice that according to the expert opinion of the Head of the Genetics Division, I.A.R.I., New Delhi, so far as this country is concerned, the major use of coriander is as a spice and condiment and it should not be classified as an oil-seed and in the light of the said expert opinion, the exemption allowed earlier was incorrect.

2. The petitioner has challenged the said notice on two grounds. First, that coriander falls within the meaning of the term 'other oil-seeds' under the Act. Secondly, that the disputed turnover in question was expressly exempted from tax under the original assessment order and that when the said turnover was before the assessing authority and exempted by him, it cannot be contended that the said turnover is an escaped turnover to tax.

3. Since we are in agreement with the second ground urged by the learned counsel for the petitioner, it is unnecessary for us to express any opinion on the first ground.

4. In S.T.R.P. Nos. 30, 31 and 32 of 1968 (Since reported as A. Misrimal Jain & Co. and Others v. State of Mysore [1971] 28 S.T.C. 137) we have held that where a particular turnover is before the assessing authority and that turnover is exempted by him, the same turnover cannot be brought to assessment under section 12-A of the Act as the turnover cannot be said to have escaped assessment. We relied on the decision in State of Kerala v. Appukutty : AIR1963SC796 . In Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Dhanalakshmi Vilas Cashew Company : (1970)3SCC273 , the Supreme Court has held that where a particular income was before the Agricultural Income-tax Officer and the same was exempted, the provision for assessing escaped income cannot be invoked or bringing such income to tax. The said decision has been applied to a sales tax case in State of Kerala v. K. E. Nainan ([1969] 24 S.T.C. Short Notes 2; since reported at : (1970)3SCC353 ) decided by the Supreme Court. The above decisions of the Supreme Court fully support our view expressed in S.T.R.P. Nos. 30, 31 and 32 of 1968 (Since reported as A. Misrimal Jain & Co. and Others v. State of Mysore [1971] 28 S.T.C. 137). Therefore under section 12-A the respondent has no jurisdiction to assess the turnover exempted earlier.

5. In the result, this writ petition succeeds and the impugned notice dated 22nd March, 1969, is quashed. No costs.

6. Petition allowed.


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