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Sri Balaganesh Textiles Vs. Commercial Tax Officer - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revision Petition Nos. 209 and 238 of 1977
Judge
Reported in[1978]41STC445(AP)
AppellantSri Balaganesh Textiles
RespondentCommercial Tax Officer
Appellant AdvocateS. Dasaratharama Reddi and ;S.R. Ashok, Advs.
Respondent AdvocateGovernment Pleader, Adv. for ;General Administration Department
DispositionPetition dismissed
Excerpt:
.....following events, namely, where the whole or any part of the turnover of business of a dealer has escaped assessment to tax, or has been under-assessed or assessed at a rate lower than the correct rate, or where the licence fee or registration fee has escaped levy or has been levied at a rate lower than the correct rate, the assessing authority may, after issuing a notice to the dealer and after making such enquiry as he may consider necessary, by order, setting out the grounds therefor--(a) determine to the best of judgment the turnover that has escaped assessment and assess the turnover so determined ;(b) assess the correct amount of tax payable on the turnover that has been under-assessed; if the turnovers which the commercial tax officer now seeks to assess are liable to be assessed..........sales tax act, 1957, hereinafter referred to as 'the act', some portions of the turnovers have escaped assessment and that he proposes to assess them on the escaped turnovers and to file objections, if they have got any, on 24th january, 1977, at 11 a. m. in his office. on receipt of the notices, questioning the jurisdiction of the commercial tax officer to reassess, the assessees have filed these two civil revision petitions.2. the commercial tax officer seeks to assess the escaped turnovers for the year 1973-74 invoking the provisions contained in section 14(4) of the act.3. the assessees in both the c.r.ps. are dealers in textiles and cotton yarn doing business at ekambarakuppam, chittoor district. for the year 1973-74, the petitioner in c.r.p. no. 209 of 1977 filed a return.....
Judgment:

Ramachandra Raju, J.

1. Though the petitioners are different, as common question of law is involved in the two C.R.Ps., they were heard together for common disposal. The revision petitions have been filed under Article 227 of the Constitution of India. They have arisen out of notices given to the petitioners by the Commercial Tax Officer, Tirupathi, informing them that for the year 1973-74 while assessing to tax their turnovers under the Andhra Pradesh General Sales Tax Act, 1957, hereinafter referred to as 'the Act', some portions of the turnovers have escaped assessment and that he proposes to assess them on the escaped turnovers and to file objections, if they have got any, on 24th January, 1977, at 11 a. m. in his office. On receipt of the notices, questioning the jurisdiction of the Commercial Tax Officer to reassess, the assessees have filed these two civil revision petitions.

2. The Commercial Tax Officer seeks to assess the escaped turnovers for the year 1973-74 invoking the provisions contained in Section 14(4) of the Act.

3. The assessees in both the C.R.Ps. are dealers in textiles and cotton yarn doing business at Ekambarakuppam, Chittoor District. For the year 1973-74, the petitioner in C.R.P. No. 209 of 1977 filed a return showing a gross turnover of Rs. 11,13,813.59 out of which he claimed exemption fora turnover of Rs. 11,13,015.17 showing only a net turnover of Rs. 798.42. The Commercial Tax Officer allowed exemptions under various heads totalling Rs. 11,10,594.17 and assessed the petitioner on a net turnover of Rs. 5,680.42. The exemptions allowed by the Commercial Tax Officer included also a turnover of Rs. 4,27,564 being the sales of cotton yarn to dealers within the State. This exemption was claimed and allowed on the ground that cotton yarn was liable to tax on the last sales within the State and the sales relating to Rs. 4,27,564 were effected to dealers within the State and that the purchasing dealers will be the last sellers liable to tax when they sell the said yarn within the State to consumers.

4. Similarly, for the same year in the case of the petitioner in C.R.P. No. 238 of 1977, exemption was given in respect of a turnover of Rs. 10,10,295.25 on the ground that the sales of cotton yarn by the petitioner were to the dealers within the State and that he was not the last seller within the State liable to tax.

5. The Commercial Tax Officer, Tirupathi, issued the impugned notice to the petitioner in C.R.P. No. 209 of 1977 stating that on subsequent verification of the accounts of M/s. Andavar Textiles, Ekambarakuppam and M/s. A.M.K. V.R. Ramaswamy Chettiar and Co., Ekambarakuppam, it has been found that those two dealers had their branch offices at Madras and transferred from their head offices at Ekambarakuppam to their branch offices at Madras. M/s. Andavar Textiles had transferred stock of cotton yarn valued at Rs. 8,81,263.05 and the petitioner's sales to them during the year were Rs. 3,12,145.00 and, similarly, M/s. A.M.K.V.R. Ramaswamy Chettiar and Co. had transferred cotton yarn worth Rs. 19,93,067.97 and the petitioner's sales to them during that year were Rs. 2,601. In the above circumstances, the petitioner was the last seller liable to pay tax because there were no subsequent sales in the State by the purchasers. Therefore, as the claim for exemption of a total turnover of Rs. 4,27,564 has been found to have escaped assessment to tax, he proposes to assess the petitioner on that escaped turnover at 2 per cent and it will be subjected to additional tax of 1/4 per cent also.

6. Similarly, in the case of the petitioner in C.R.P. No. 238, the Commercial Tax Officer has stated in the notice that out of the total turnover of Rs. 10,10,295.25 to dealers within the State and on which exemption was allowed, a turnover of Rs. 5,09,594 has escaped assessment to tax as the purchaser-dealers from the petitioner having branch offices at Madras have transferred cotton yarn from their head offices to their branch offices at Madras. Therefore, in respect of those sales, the petitioner was the last seller in the State liable to tax.

7. The argument of Sri S.R. Ashok, learned counsel for the petitioners, is that Section 14(4) of the Act has no application and the assessing authority (Commercial Tax Officer) cannot reopen the matter and assess the turnover already exempted by him and it is only the authorities which are given revisional powers as in Section 20 of the Act that have jurisdiction to deal with the matter.

8. Section 14(4) of the Act, to the extent it is relevant for our purpose, reads thus:

Section 14. (4) In any of the following events, namely, where the whole or any part of the turnover of business of a dealer has escaped assessment to tax, or has been under-assessed or assessed at a rate lower than the correct rate, or where the licence fee or registration fee has escaped levy or has been levied at a rate lower than the correct rate, the assessing authority may, after issuing a notice to the dealer and after making such enquiry as he may consider necessary, by order, setting out the grounds therefor--

(a) determine to the best of judgment the turnover that has escaped assessment and assess the turnover so determined ;

(b) assess the correct amount of tax payable on the turnover that has been under-assessed;

(c) assess at the correct rate the turnover that has been assessed at a lower rate;

9. According to the learned counsel for the petitioners, the exempted turnover which the Commercial Tax Officer now seeks to assess cannot be said to be the turnovers that have escaped assessment or have been underassessed or have been assessed at a lower rate and, therefore, Section 14(4) of the Act has no application. If the turnovers which the Commercial Tax Officer now seeks to assess are liable to be assessed to tax and the petitioners were not entitled to the exemptions granted, we fail to understand how those turnovers, for which exemption from tax cannot be claimed by the pettioners, cannot be said to be turnovers which have either escaped assessment or have been under-assessed. Even assuming that those turnovers cannot be said to have escaped assessment as they were disclosed in the returns filed by the petitioners, then those turnovers would necessarily be underassessed turnovers. In either case, the assessing authority has jurisdiction under Section 14(4) of the Act to assess the turnovers for which exemption from tax was allowed and to which the assessees were not entitled. It is true that in the impugned notice it is mentioned that the turnovers have escaped assessment. Even assuming that they cannot be termed as turnovers which have escaped assessment, still the notice cannot be said to be bad because, even if the turnovers are said to be under-assessed turnovers, the Commercial Tax Officer can assess the same under Section 14(4). Whether they are escaped turnovers or under-assessed turnovers, the substance of the matter is that the assessing authority can assess them if exemptions were wrongly granted earlier.

10. Coming to the argument of the learned counsel that the matter can be dealt with only in revision as provided under Section 20 of the Act, it is provided in that section that the authority concerned can call for and examine the record of any order or proceeding recorded by any authority subordinate to it under the provisions of the Act, for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order in reference thereto as it thinks fit. Thus, a revisional authority can only examine the record of the order passed by the subordinate authority and it cannot' go beyond it. So far as the records go, the exemptions granted by the assessing authority would appear to be perfectly valid since what would all appear from the records and the assessment orders is that the exempted turnovers relate to the sales effected to dealers within the State and not to consumers and the last sales in the State would be only the sales to be effected by the purchaser-dealers. Therefore, the escaped assessments or under-assessments are not matters which can be detected from the assessment records to be dealt with by the revisional authorities in exercise of their revisional powers as provided under Section 20 of the Act.

11. We have no doubt that the matter squarely comes under Section 14(4) of the Act.

12. Sri S.R. Ashok has brought to our notice the decision of the Supreme Court in Deputy Commissioner v. Dhanalakshmi Vilas Cashew Co. [1969] 24 S.T.C. 491 (S.C.), in support of his argument that only a revision lies under Section 20 and Section 14(4) has no application. There, the Supreme Court was considering the Kerala General Sales Tax Act. Section 15(1)(i) of that Act is similar to Section 20 of the present Act under which powers of revision were given over the orders of the assessing authority. Under that provision, the Deputy Commissioner issued a notice to the assessee and passed an order revising the assessment order by including an additional turnover of Rs. 17,994. The Sales Tax Officer, viz., the assessing authority, had before him that particular turnover, but did not tax it on the ground that it was not liable to tax. It was contended in that case that the Deputy Commissioner had no jurisdiction under Section 15(1)(i) and he can proceed only under Rule 33 of the General Sales Tax Rules framed under that Act, which is similar to the present Section 14(4) of the Act, where power is given for assessment of escaped turnovers in which case it would be barred by time. There the turnover in question was before the assessing authority. There is no inadvertence on the part of the authority in not assessing that turnover. But he did not tax the turnover stating that 'the stock of pepper and ginger available is not liable to tax because they have been sold subsequently'. But, as a matter of fact, the stock was sold in the year of assessment, but not subsequently. That was a mistake which was apparent on the face of the record. That was not a mistake which was discovered on account of any subsequent information or event happening. Under these circumstances, the Supreme Court said in that case that the matter squarely falls under the powers of the revisional authority.

13. In the case of revision, the revisional authority while exercising the revisional jurisdiction will be restricted to the examination of the records for determining whether the order of assessment was according to law. In the present case, the record shows that the turnovers in question represent the sales to the dealers within the State and not to the consumers, which normally would not become last sales in the State because there would be further sales by the purchaser-dealers. Therefore, the assessment record would not show what had happened subsequently, viz., non-selling of the stocks relating to the said turnovers by the dealer-purchasers, but their transferring the stocks to their branch offices at Madras. Therefore, this is not a matter which can be dealt with by the revisional authority in revision. The assessing authority can only deal with the matter taking into consideration the subsequent information he obtained, viz., the transfer of the stocks to the Madras branch offices of the purchaser-dealers instead of selling the same in the State. Therefore, the facts in the above Supreme Court Case [1969] 24 S.T.C. 491 (S.C.) and the present are different.

14. In the decision State of Kerala v. M. Appukutty A.I.R. 1963 S.C. 796, the Supreme Court has said that the power of the Deputy Commissioner of Commercial Taxes to assess escaped turnover does not arise out of revisional jurisdiction. In exercising the revisional jurisdiction, the Deputy Commissioner of Commercial Taxes will be restricted to the examination of the record for determining whether the order of assessment was according to law and, therefore, the assessment made by the Deputy Commissioner on the escaped turnover exercising his revisional authority after issuing a notice is without jurisdiction.

15. In decided cases, no doubt, the High Courts took the view that where the turnover was before the assessing authority and was expressly exempted by him under the original assessment order, it could not be said that that turnover was an escaped turnover. The principle would apply only in cases where the escaped turnover was wrongly omitted or exempted from tax even on the facts existing at the time of the assessment. But the present cases are not cases of that type. On the facts existing at the time of the assessments, the exemptions were properly given. It is on account of what had happened subsequently only, the exemptions granted became invalid.

16. Therefore, we hold that the impugned notices given by the Commercial Tax Officer cannot be said to be without jurisdiction. Accordingly, the civil revision petitions are dismissed, but, in the circumstances, without costs. This does not preclude the petitioners from contending before the assessing authority that the turnovers in question are not, as a matter of fact, liable to assessment.


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