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K.C. Mohta and anr. Vs. Assistant Commissioner of Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 326 of 1976
Judge
Reported in[1978]41STC17(Orissa)
AppellantK.C. Mohta and anr.
RespondentAssistant Commissioner of Sales Tax and anr.
Appellant AdvocateB. Agarwalla and ;M.R. Panda, Advs.
Respondent AdvocateStanding Counsel (S.T.)
DispositionPetition allowed
Cases ReferredBombay v. Shapoorji Pallonji Mistry
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....s.k. ray j.1. the petitioner is a dealer in electrical goods and he was registered under the orissa sales tax act. he was assessed for the year 1971-72 under section 12(4) of the orissa sales tax act (hereinafter referred to as 'the act') by order dated 10th march, 1973 (annexure 1). the returned gross turnover was accepted, deduction claimed under section 5(2)(a)(a)(ii) to the extent of rs. 1,95,496.17 was allowed except for a sum of rs. 564.67 and this resulted in extra demand of tax of rs. 41.69.the petitioner purchased some goods from m/s. general electrical com-pany of india by furnishing declaration under section 5(2)(a)(a)(ii) of the act and transferred a portion of it to his calcutta head office valued at rs. 1,30,095.49, contravening the proviso to section 5(2)(a)(a)(ii) of the.....
Judgment:

S.K. Ray J.

1. The petitioner is a dealer in electrical goods and he was registered under the Orissa Sales Tax Act. He was assessed for the year 1971-72 under Section 12(4) of the Orissa Sales Tax Act (hereinafter referred to as 'the Act') by order dated 10th March, 1973 (annexure 1). The returned gross turnover was accepted, deduction claimed under Section 5(2)(A)(a)(ii) to the extent of Rs. 1,95,496.17 was allowed except for a sum of Rs. 564.67 and this resulted in extra demand of tax of Rs. 41.69.

The petitioner purchased some goods from M/s. General Electrical Com-pany of India by furnishing declaration under Section 5(2)(A)(a)(ii) of the Act and transferred a portion of it to his Calcutta head office valued at Rs. 1,30,095.49, contravening the proviso to Section 5(2)(A)(a)(ii) of the Act. The Sales Tax Officer, opposite party No. 2, while assessing under Section 12(4) of the Act excluded this amount from the returned gross turnover presumably being ignorant of such contravention of the said proviso.

2. The Assistant Commissioner of Sales Tax, opposite party No. 1, who had been delegated suo motu power of revision by the Commissioner as per Notification No. I. S. T. 75/63-14171 dated 3rd August, 1963, assessed the escaped turnover of Rs. 1,30,095.49 by his impugned order, annexure 2, dated 3rd March, 1976, in exercise of his revisional power under Rule 80 of the Orissa Sales Tax Rules, 1947. This petition is to quash annexure 2.

3. It is not disputed either by the petitioner or by the revenue that the impugned turnover of Rs. 1,30,095.49 has been taxed as the petitioner contravened the proviso to Section 5(2)(A)(a)(ii) of the Act. The revisional authority in exercise of its power under Rule 80 rendered the following findings :

(a)...On scrutiny of the records for the year 1971-72 it was found subsequently that the appellant has transferred a portion of the goods purchased from M/s. G. E.C. of India, Cuttack branch, by furnishing declarations under Section 5(2)(A)(a)(ii) of the Act to the said office at Calcutta. The assessing officer while completing the assessment for the above period had not added the said turnover to the taxable turnover, nor did he levy tax on such turnover.

(b)...Instead of reselling the same in Orissa as per the undertaking given in the declarations to the selling dealers, he has transferred the stock worth Rs. 1,30,095.49 to his head office at Calcutta. This amounts to contravention and proviso to Section 5(2)(A)(a)(ii) is thus attracted. Accordingly, the price of goods worth Rs. 1,30,095.49 so otherwise utilised is liable to be included in his taxable turnover....

(c) The assessing officer is directed to serve a notice of demand on the appellant to pay this additional tax amounting Rs. 9,156.45 according to the provisions of law.

4. The only contention of the learned counsel for the petitioner is that the revisional authority (opposite party No. 1) has not been conferred, in law, with any original jurisdiction in the matter of assessment of escaped turnover for which specific and separate provisions under Section 12(8) of the Act and Rule 23 of the Orissa Sales Tax Rules (hereinafter called 'the Rules') have been made enabling the Sales Tax Officer to assess such turnover after following the special procedure indicated therein.

5. Before launching upon a discussion of the sole contention of the learned counsel for the petitioner developed through case-law, it is appropriate to extract the relevant notification delegating to opposite party No. 1 the powers of the Commissioner and the relevant provisions of law and the rule.

Section 12 deals with assessment of tax. Sub-sections (1) to (4) provide for procedure for assessment of tax in different circumstances. Sub-sections (4)(a) and (5) provide for payment of interest and penalty respectively. Sub-section (6) empowers the taxing authority to assess tax due from any dealer separately for each year or for a part of the year. Sub-section (7) imposes a liability to prosecution on the dealer in addition to his liability to assessment of tax. Then comes Sub-section (8), which is very material for the present purpose and is extracted in extenso :

(8) If for any reason the turnover of a dealer for any period to which the Act applies has escaped assessment or has been under-assessed, or where tax has been compounded when composition is not permissible under this Act and the Rules made thereunder, the Commissioner may at any time within thirty-six months from the expiry of the year to which that period relates call for a return under Sub-section (1) of Section 11 and may proceed to assess the amount of tax due from the dealer in the manner laid down in Sub-section (5) of this section and may also direct, in cases where such escapement or under-assessment or composition is due to the dealer having concealed particulars of this turnover or having without sufficient cause has furnished incorrect particulars thereof, that the dealer shall pay, by way of penalty in addition to the tax assessed under this sub-section, a sum not exceeding one and a half times of the said tax so assessed.

Rule 80 of the Rules, under which opposite party No. 1 has purported to act, runs as follows:

The Commissioner may of his own motion, at any time within three years from the date of passing of any order by the Assistant Sales Tax Officer or by the Sales Tax Officer and within two years from the date of passing of any order other than an appellate order by the Additional Commissioner, Deputy Commissioner or the Assistant Commissioner, as the case may be, call for the record of the proceeding in which such order was passed and revise any such order.

The notification by which the Commissioner delegated his power under Rule 80 to the opposite party No. 1 is extracted herein below:

Notification No. I. S. T. 76/63-14171 dated the 3rd August, 1963.- In exercise of the powers conferred by Section 17 read with Clause (d) of Sub-section (4) of Section 23 of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947), I, S. M. H. Burney, I. A. S., Commissioner of Sales Tax, Orissa, with the prior approval of the State Government do hereby delegate my powers and duties under the said Act and the Rules framed thereunder as specified in the schedule hereto annexed to the Assistant Commissioner of Sales Tax and direct that the said powers and duties shall be exercised and discharged by the said Assistant Commissioner within their respective jurisdictions.

Schedule

________________________________________________________________

Serial Provision of the Orissa Description of the powers

No. Sales Tax Act, 1947 and and duties No delegated.

Rules made there-under

specifying the powers and

duties delegated.

________________________________________________________________

1. Sub-section (4)(a) of Powers to revise assessment

Section 23 of the Orissa orders passed by the Sales

Sales Tax Act, 1947, read Tax Officer and Assistant

with Rule 80 of the Orissa Orissa Sales Tax Officer

Sales Tax Rules, 1947. suo motu provided that no

appeal has been filed against

such orders.'

________________________________________________________________

6. It appears from the original assessment order (annexure 1) that the impugned turnover of Rs. 1,30,095.49 was considered by the Sales Tax Officer who excluded it from gross turnover in consideration of the declaration in terms of Section 5(2)(A)(a)(ii) of the Act and did not consider application of its proviso, because, we must assume, he was ignorant of transfer of goods worth Rs. 1,30,095.49 to Calcutta. Section 5(2)(A)(a)(ii) of the Act and its proviso operate on two separate fields. Under the section a claim of deduction from the gross turnover is made of sales made by the dealer as specified in Clauses (a)(i) and (ii) of that section, while the proviso operates in adding to the taxable turnover price of goods purchased by a dealer for resale in Orissa, but utilised in breach of the purposes specified in his certificate of registration. The proviso deals with consequences that follow if the purchasing dealer uses the goods for purposes other than those specified in his certificate of registration and directs that, in that event, the price of goods so utilised shall be included in the gross turnover: see the case of State of Orissa v. M.A. Tulloch and Co. Ltd. [1964] 15 S.T.C. 641 at 643 (S.C.). When the contingency envisaged in the proviso occurs, the burden lies on the department to establish facts which constitute the violation of the declaration: see the case of Goswami Press v. State of Orissa [1973] 32 S.T.C. 479 at 483. This burden has not been sought to be discharged. It is not a case of the department trying to discharge the burden before the Sales Tax Officer and failing. It may, at most, be said to be concealment of a fact by the assessee which occasioned failure of assessment of the impugned turnover. A case of escaped turnover has been explained by the Supreme Court in the case of Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur [1963] 14 S.T.C. 976 (S.C), as including cases of a turnover which has not been assessed at all because for one reason or other no assessment proceedings were initiated and, therefore, no assessment was made in respect thereof. It also includes cases where due to any reason no notice was issued to the assessee and, therefore, there was no assessment of his income and also a case of omission or deliberate concealment on the part of the assessee to submit a return for any period for assessment, resulting in the escape of the turnover for that period from assessment to tax. Similar view of the expression has been taken in the case of Anandji Haridas and Co. v. S.P. Kushare A.I.R. 1968 S.C. 565. This is the meaning to be attributed to the opening words in Section 12(8) of the Act: 'If for any reason the turnover of a dealer...has escaped assessment...' In the case of State of Orissa v. Nanda Sahu and Padan Sahu [1973] 32 S.T.C. 223 at 226. it has been held :.Be it on account of the assessee or the assessing officer, if that has ultimately resulted in escapement of a part of turnover from assessment the right to bring the escaped turnover into the net of taxation is vested by a provision like Section 12(8) of the Act in the assessing officer ordinarily subject to limitations as may be prescribed. In such circumstances, merely because a particular information regarding suppression was already available in the Intelligence Wing before the regular assessment under Section 12(2) of the Act was made and was admittedly not utilised, cannot stand in the way of initiating a proceeding under Section 12(8) of the Act. Even if the information was in the possession of the assessing officer himself, but had not been taken into account in the making of the assessment, the position would not have been different....

In our view, the impugned turnover being neither returnable nor considered nor assessed at the time of original assessment under Section 12(4) of the Act, this is a case of escaped assessment and Section 12(8) of the Act expressly confers jurisdiction on the Sales Tax Officer to reassess the impugned turnover after observing the formalities contained therein.

7. The learned standing counsel for the department relies on a number of cases to contend that the instant case is not a case of escaped assessment.

The first case is the case of Commissioner of Income-tax, West Bengal II, v. Dinesh Chandra H. Shah [1971] 82 I.T.R. 367 (S.C.). In this decision, the assessee was assessed at Calcutta for the year 1955-56. He also received his share of income in a firm at Madras and had shown it in the return. The profit allocation report of the share of profit from the Madras firm had been received by the Income-tax Officer in September, 1955 and an order was recorded in the order sheet of the proceedings to that effect. The assessment was completed in November, 1958. The Income-tax Officer failed to include in the total income, the share of profit from Madras firm. Subsequently, in the year 1960, the Income-tax Officer issued a notice under Section 34(l)(b) of the Income-tax Act, 1922, to assess the income as escaped assessment. On the above facts, their Lordships of the Supreme Court held that as the factum and existence of the income had been fully disclosed in the return filed by the assessee and with regard to that income a note had been made on the file by the Income-tax Officer when the share allocation report was received from Madras, it was a case of Income-tax Officer refusing to assess this income, though wrongly, but not a case of escaped assessment and jurisdiction under Section 34(1)(b) could not be invoked.

The second case is the case of Anandji Haridas & Co. (P.) Ltd. v. S.P. Kushare A.I.R. 1968 S.C. 565, where it has been held that an income escapes assessment when the process of assessment has not been initiated at all, also, it has resulted in no assessment after completion of the process. This rather supports the petitioner's case as the impugned turnover has not resulted in any assessment after completion of the process.

Thus, none of the two aforesaid decisions contains anything which affects our conclusion that the instant case is one of escaped assessment.

8. The next question, therefore, is in view of our aforesaid conclusion, whether the Assistant Commissioner, the delegatee of the Commissioner, can assess the escaped turnover. The notification delegating the power has already been extracted above. It is a limited delegation. It empowers the Assistant Commissioner only to revise the assessment order passed by the Sales Tax Officer where no appeal has been filed against such order. The Assistant Commissioner is also the first appellate authority under the Act and the Rules and first appeals lie to him. Thus, when an appeal is preferred by a dealer to him, he has the opportunity to examine the legality and propriety of the order of assessment and, in appropriate cases, he can even enhance the turnover of a dealer, subject to the limitation that he can enhance only the sources of the turnover or income assessed in the order of assessment. It has been ruled by the Supreme Court in the cases of Commissioner of Income-tax (Central), Calcutta v. Rai Bahadur Hardutroy Motilal Chamaria [1967] 66 I.T.R. 443 (S.C.) and Commissioner of Income-tax, Bombay v. Shapoorji Pallonji Mistry [1962] 44 I.T.R. 891 (S.C.), that:. in an appeal filed by the assessee the Appellate Assistant Commissioner has no power to enhance the assessment by discovering new sources of income not mentioned in the return of the assessee or considered by the Income-tax Officer in the order appealed against.

The revenue has no independent right of filing a first appeal to the Assistant Commissioner. Thus, in cases where the assessee does not file an appeal and there is, therefore, no scope of interfering in the order of assessment, which for some reason is either illegal or improper, to meet such eventuality the Assistant Commissioner has been delegated the power to revise the order of assessment which could have been appealed from but has not been made subject of an appeal. He, therefore, has been authorised to pass such orders in exercise of his revisienal jurisdiction which he could have passed as an appellate authority. If the Assistant Commissioner, as an appellate authority, could not assess any escaped turnover, he has, therefore, no power under the delegation to assess the same. On this conclusion, the impugned order (annexure 2) is liable to be quashed.

9. Rule 80 of the Rules, even though couched in wide language, when construed in the background of the scheme of the Act, does not confer power to assess any escaped turnover. Section 12(8) of the Act confers specific power to make such assessment on the very authority who is empowered to assess a dealer under Sub-section (1) of Section 12. If the construction given to Rule 80 by the revenue is accepted, then there would be two simultaneous authorities vested with the same identical power of taxing escaped turnover, that is, to assess a new source of income. That could not obviously be the intendment of law. Rule 80 has been framed by the State Government in exercise of rule-making power under Section 29 of the Act. Sub-section (1) of Section 29 gives power to the State Government to make rules for carrying out the purposes of the Act and neither Sub-section (1) nor Sub-section (2) of Section 29 authorises the State Government to make rules to create new jurisdiction not envisaged within the four corners of the Act. Therefore, Rule 80 cannot be construed to confer jurisdiction on the Commissioner to assess escaped turnovers. Rule 23, Sub-rule (1), provides that if for any reason the turnover of sales or turnover of purchases of a dealer has escaped assessment and it is proposed to assess the same, the Commissioner shall serve on the dealer a notice in form VI calling upon him to furnish a return in form IV. Form VI is the form of a 'Notice to a dealer under Sections 11(1) and 12(6)/12(8) of the Orissa Sales Tax Act, 1947'. That indicates that the only forum provided in the Act for assessment of escaped turnover is under Section 12(8) of the Act. Again, Section 12(8) of the Act gives jurisdiction to the Commissioner in the matter of escaped assessment which has devolved on the Sales Tax Officer only by reason of Sub-section (3) of Section 3 of the Act read with Rule 3 of the Rules. It is, therefore, inconceivable that the same power which has been conferred under the Act on the Commissioner under Section 12(8) should again be reconferred under Rule 80. The matter of assessment of escaped turnover can come before the Commissioner under Rule 80 only after it has been dealt with by the prescribed authority under Section 12(8) of the Act, but not before. There is nothing in the Act or the Rules apart from the wide language of Rule 80 to indicate that concurrent jurisdiction is conferred on the Sales Tax Officer and the Commissioner with respect to the self-same matter of assessment of escaped turnover. This view gets reinforcement from the language of Rule 80 which empowers the Commissioner to revise any order passed by the Assistant Sales Tax Officer, Sales Tax Officer, Additional Commissioner, Deputy Commissioner or the Assistant Commissioner passed under the Act. In the absence of any order passed by those designated subordinate authorities, a case for invoking the revisional jurisdiction of the Commissioner would not arise. In other words, the Commissioner's jurisdiction would be confined to the subject-matter of the order under revision and cannot travel beyond such orders to matters not dealt with by those officers. Various case-laws referred to hereinbelow lend support to this view.

The Supreme Court in the case of Commissioner of Income-tax (Central), Calcutta v. Hardutroy Motilal Chamaria [1967] 66 I.T.R. 443 (S.C.) was considering the power of the Appellate Assistant Commissioner under Section 31(3) of the Income-tax Act, 1922. That sub-section confers power on the Appellate Assistant Commissioner to confirm, reduce, enhance or annul the assessment, or set aside the assessment and direct the Income-tax Officer to make a fresh assessment after making such further inquiry as the Income-tax Officer thinks fit or the Appellate Assistant Commissioner may direct. This power was considered not to embrace within its scope the power to assess a new source of income, not considered by the Income-tax Officer and such a power was held to be beyond the jurisdiction of the Appellate Assistant Commissioner. A point was raised in that case before the Supreme Court that the Income-tax Officer had noted the fact of transfer of a sum of Rs. 5,85,000 by the assessee to Forbesganj branch. Basing on that fact, it was argued that in the appeal, the Appellate Assistant Commissioner has, therefore, jurisdiction to deal with the question of taxability of that amount and to hold that it was taxable as undisclosed profits in the hands of the assessee. This argument was repelled. It was held that though the Income-tax Officer had referred to the remittance of the cash from the Calcutta branch but he considered the despatch of this amount only with a view to test the genuineness of the entries relating to Rs. 4,30,000 in the books of the Forbesganj branch, he did not consider that amount of Rs. 5,85,000 in the process of assessment from the point of view of its taxability. Applying the principle of this decision, it would appear to us that the revisional jurisdiction of the Commissioner under Rule 80 would be confined to matters dealt with by the Sales Tax Officer in the process of assessment and cannot entrench upon matters which were never agitated during such process.

The case of Commissioner of Agricultural Income-tax, Trivandrum v. Lucy Kochuvareed [1976] 103 I.T.R. 799 (S.C), decided by the Supreme Court, is a case on all fours with the present one. That case arose out of an assessment proceeding of an assessee to agricultural income-tax under Sections 34 and 35 of the Kerala Agricultural Income-tax Act, 1950. The Commissioner exercised his revisional power under Section 34 of that Act in regard to assessment years 1959-60 and 1960-61 on the ground that in computing the agricultural income of the assessee from his rubber plantation excessive allowance had been granted towards expenses for the upkeep and maintenance of immature rubber plants and, therefore, income had escaped assessment. He, therefore, set aside the assessment orders and remanded the cases to the assessing officer for fresh disposal after examining each item of expenditure individually. Section 34 of that Act confers revisional power on the Commissioner and runs as follows:

The Commissioner may, of his own motion or on application by an assessee, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit:

Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard.

(The rest of the section need not be extracted).

Section 35 of that Act relates to income escaping assessment. Sub-section (1) of that section, which is relevant for the present purpose, is extracted hereinbelow:

(1) If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income-tax Officer may, at any time within three years of the end of that year serve on the person liable to pay the tax or in the case of a company on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under Sub-section (2) of Section 17 and may proceed to assess or reassess such income and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section:

Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be :

Provided further that the Agricultural Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so.

The High Court had taken the view that in the case of escaped assessment, a special provision for such escaped assessment having been made in Section 35, the Commissioner could not deal with that subject-matter in exercise of his revisional power under Section 34. The Supreme Court took the view on appeal that that was not a case of escaped assessment but was a case of under-assessment and, therefore, the Commissioner had the power of revision in respect of the same. The ground of reversal of the High Court's decision indicates that revisional powers cannot be exercised in taxing an escaped turnover because of existence of a special and distinct provision for such assessment. It, therefore, gives support to the present contention of the petitioner's counsel that where a specific provision to deal with the question of assessment of escaped turnover has been made [section 12(8) of the Act], revisional power under Rule 80 cannot be exercised in respect of the same subject-matter.

In the case of Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Dhanalakshmi Vilas Cashew Co. [1969] 24 S.T.C. 491 (S.C.). the Supreme Court was considering the scope and ambit of revisional power of the Deputy Commissioner under Section 15(1) of the Kerala General Sales Tax Act. This section is in essence similar to Rule 80 of the Rules empowering the Deputy Commissioner to call for and examine the record of any order passed or proceeding recorded under the provisions of that Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order, or as to the regularity of such proceeding and may pass such order with respect thereto as he thinks fit. Rule 80 of the Rules similarly authorises the Commissioner to revise any order passed by a subordinate authority for the purpose of satisfying himself as to the legality or propriety of such order. Construing this Section 15, their Lordships of the Supreme Court held that the revisional jurisdiction under Section 15(1) is quite distinct and separate from the one created under Rule 33 to tax escaped turnover. The Deputy Commissioner while exercising revisional jurisdiction under Section 15(1) would be restricted to the examination of the record for determining whether the order of assessment was according to law. Rule 33, which confers distinct power of assessment of escaped turnover, is normally to be exercised in matters de hors the record of assessment proceedings.

10. The learned standing counsel for the department has relied on two decisions for his contention that the revisional jurisdiction is wide enough to include within it the power to tax escaped turnover. Those decisions are : (a) State of Kerala v. M. Appukutty [1963] 14 S.T.C. 242 (S.C.) and (b) Ram Kanai Jamini Ranjan Pal Pvt. Ltd. v. Member, Board of Revenue, West Bengal [1976] 38 S.T.C. 1 (S.C.).

In the case of State of Kerala v. M. Appukutty [1963] 14 S.T.C. 242 (S.C.). the question which was agitated was whether the Deputy Commissioner of Commercial Taxes could assess an escaped turnover under Rule 17(3-A) of the Rules framed by the State Government under Section 19 of the Madras General Sales Tax Act, 1939. In Section 12(2) of that Act revisional power was also conferred on the Deputy Commissioner in respect of any order passed or proceeding recorded by the Commercial Tax Officer under Sub-section (1) or any other provision of that Act and against which no appeal has been preferred to the Appellate Tribunal under Section 12-A. This revisional power was to be exercised suo motu or on an application. Rule 17 was a specific pro-vision for assessment of escaped turnover. Dealing with the revisional power of the Deputy Commissioner under Section 12(2), their Lordships said that the power to assess escaped turnover did not arise out of the jurisdiction exercisable under Section 12(2). In exercising such revisional jurisdiction, the Deputy Commissioner would be restricted to the examination of the record for determining whether the order of assessment was according to law. Rule 17, however, conferred express and separate power to assess escaped turnover which may normally be exercised in matters de hors the record of assessment proceedings before the Deputy Commercial Tax Officer. This is an authority which rather supports the petitioner's case that where a specific provision has been made for assessment of escaped turnover, the revisional authority empowered to revise any order of the subordinate authority would not embrace such express power of assessment of escaped turnover.

In the case of Ram Kanai Jamini Ranjan Pal Pvt. Ltd. [1976] 38 S.T.C. 1 (S.C.), their Lordships said:.The word 'revise' occurring therein, which, in dictionary, is described as meaning to 're-examine, to review, to correct or to amend the fault' is not hedged or qualified by any condition or limitation. The controlling expressions like 'for the purpose of satisfying himself as to the legality or propriety of the order passed' or 'regularity of the proceeding', which are susceptible of being construed as restricting the revisional power to rectification of an illegality or impropriety of the order or of irregularity in the proceeding are also not to be found therein. There is also nothing in the Bengal Sales Tax Rules, 1941 (hereinafter called 'the Rules'), to circumscribe or limit the power. It is not, therefore, unreasonable to infer that the amplitude of the power conferred on the Commissioner or the Additional Commissioner is more extensive than the power exercisable by the High Court under Section 115 of the Code of Civil Procedure. In fact, it can be easily equated with the power exercisable by the appellate authority in an appeal under Sub-section (2) of Section 20 of the Act....

This passage has been relied upon by the learned standing counsel for the department to substantiate his argument that the revisional jurisdiction is wide enough to assess an escaped turnover. But at pages 8 and 9, the Supreme Court has further observed:

The decisions of this court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Dhanalakshmi Vilas Cashew Co. [1969] 24 S.T.C. 491 (S.C.), State of Kerala v. M. Appukutty [1963] 14 S.T.C. 242 (S.C.) and Commissioner of Income-tax, Bombay v. Shapoorji Pallonji Mistry [1962] 44 I.T.R. 891 (S.C.) relied upon by Mr. Desai in support of his contention that while exercising his revisional power under Section 20(3) of the Act, the Commissioner cannot travel outside the return made by the assessee and the assessment order passed by the Sales Tax Officer with a view to finding out suppressed or escaped items of turnover and enhance the assessment are distinguishable as in all those cases, there were specific and separate provisions which enabled escaped turnover or income being brought to tax after following a special procedure. In Dhanalakshmi Vilas Cashew Co.'s case [1969] 24 S.T.C. 491 (S.C.), there was Rule 33 of the Kerala General Sales Tax Rules, 1950; in M. Appukutty's case [1963] 14 S.T.C. 242 (S.C.). there was Rule 17 of the Madras General Sales Tax Rules, 1939 and, in Shapoorji Pallonji Mistry's case [1962] 44 I.T.R. 891 (S.C.), there were sections 34 and 33B of the Income-tax Act, 1922, which enabled escaped turnover or escaped income to be brought to tax. In the Act before us, however, there are no separate or specific provisions for assessment of escaped turnover which may, by implication, be said to exclude from the ambit of the revisional jurisdiction of the Commissioner the taking of additional facts into consideration and enhancing the gross turnover.

11. Considering the aforesaid decisions, it is clear that where in a taxing statute there is no express provision to assess escaped turnover, the revisional authority may be held to have that power to assess escaped turnover; but where the statute provides specific provision like Section 12(8) of the Act and Rule 23 of the Rules enabling the Sales Tax Officer to assess the escaped turnover after following a special procedure, the revisional jurisdiction under Rule 80 of the Rules cannot be construed to embrace such power to assess escaped turnover. For the aforesaid reasons, we are satisfied that Rule 80 of the Rules does not confer any power and jurisdiction on the Commissioner to assess escaped turnover which has been specifically provided in Section 12(8) of the Act. Logically, therefore, the Assistant Commissioner of Sales Tax cannot get a jurisdiction and power which the Commissioner himself does not possess. On this ground also the impugned order (annexure 2) passed by the Assistant Commissioner of Sales Tax is without jurisdiction and such order is, therefore, liable to be quashed. We, accordingly, direct that a writ of certiorari be issued quashing annexure 2.

This petition, accordingly, succeeds and the petitioner is entitled to costs assessed at Rs. 200.

P.K. Mohanti, J.

I agree.


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