Jagdish Sahai, J.
1. This reference has been made to us by the Judge (Revisions) Sales Tax, U.P., at the instance of the Commissioner, Sales Tax, U.P. The following question of law has been Submitted for our answer :
Whether enhancement of the rate of tax inadequately imposed in the initial stage is within the scope of Section 21 of the U.P. Sales Tax Act
2. From the statement of the case it appears that the assessing authority assessed M/s. Rohilkhand Glass and Syndicate Works (hereinafter referred to as 'the assessee') for the year 1955-56 on a turnover of Rs. 85,000 on 5th January, 1957.
3. The assessing authority reopened the case under Section 21 of the U.P. Sales Tax Act (hereinafter referred to as 'the Act') on receiving information that the assessee had purchased some more coal than what he had given out. On enquiry it was found that the information was not correct. However, the assessing authority discovered that the rate of 3 pies per rupee applied was wrong and the correct rate should have been 6 pies per rupee. He, therefore, enhanced the amount of tax.
4. The assessee appealed but without success. It then filed a revision application before the Judge (Revisions). The Judge (Revisions) allowed the revision application on the finding that Section 21 of the Act did not apply to the instant caser. He, as already stated earlier, made the instant reference at the instance of the Commissioner of Sales Tax, U.P.
5. Section 21 of the Act, so far as relevant for our purposes, reads as under :
21. Assessment of tax on the turnover not assessed during the year.- (1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year, the assessing authority may, after issuing notice to the dealer, and making such enquiry as may be necessary, assess or reassess him to tax :
Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment or full assessment, as the case may be....
6. Section 21 of the Act permits the reopening of an assessment or making a fresh assessment only if 'the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year'. In the present case the full turnover was assessed. Only the wrong rate was applied. We are, therefore, of opinion that Section 21 of the Act did not apply to the facts of the present case.
7. The Chief Standing Counsel has Submitted that the use of the words 'has for any reason' shows that the case can be reopened for any reason whatsoever. In oar opinion, the Submission is not correct. The words 'has for any reason' are related to the words 'the whole or any part of the turnover of a dealer'. Therefore, what is to be seen is whether the whole or any part of the turnover of a dealer has escaped assessment for whatever reason. Inasmuch as in the present case neither the whole nor a part of the turnover has escaped assessment, there can possibly be no application of Section 21 of the Act.
8. The Chief Standing Counsel further placed reliance upon the proviso and Submitted that the use of the words 'shall be charged at the rate at which it would have been charged had the turnover not escaped assessment or full assessment' indicates that the case can be reopened and the assessee can be charged afresh. In our judgment the learned counsel can find no support for his Submission from the language of the proviso. The proviso would apply only to a case where either whole or a part of the assessment has escaped assessment and not to a case where the full turnover has been assessed but only a wrong rate has been applied. We would like to point out that the language of Section 21 of the Act is very different from Section 34 of the Income-tax Act of 1922 or Section 147 of the Indian Income-tax Act, 1961. In Section 34 of the 1922 Act the words used are 'or even under-assessed or assessed at too low a rate'. Similarly in explanation 1 of Section 147 of the 1961 Act it has been provided that 'for the purposes of this Section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :-
(b) where such income has been assessed at too low a rate.
9. There is no such provision in Section 21 of the Act.
10. In our opinion, the proper provision to apply was Section 22 of the Act because it appears to us that the present case is one of rectification or of correcting an error.
11. For the reasons mentioned above, we answer the question referred to us in the negative against the Commissioner of Sales Tax, U.P., and in favour of the assessee. We award a sum of Rs. 100 by way of costs of this proceeding to the assessee.