DY COMMISSIONER SALES TAX Vs. ELIAS

JUDGEMENT

(1.) THE Revenue is the revision petitioner herein. THE respondent is an assessee under the Kerala General Sales Tax Act (in short, the act ). We are concerned with the assessment year 1983-84. In this revision, the Revenue assails the order passed by the Sales Tax Appellate Tribunal, Additional Bench, Ernakulam, dated 29-1-1990, rendered in Tribunal Appeal No. 872 of 1986. THE sole question that arises for consideration is whether an assessment made under the Act can be reopened under s. 19 of the said Act on a mere change of opinion. THE Tribunal answered the question in the negative. It was held that the assessment cannot be reopened merely on change of opinion of the assessing authority. This view taken by the appellate Tribunal is assailed by the Revenue in this revision.

(2.) WE heard counsel for the Revenue Mr. N. N. D. Pillai. The respondent- assessee was not represented before us, though notice was served on the respondent long ago. S. 19 of the Act runs as follows: "19. Assessment of escaped turnover:- (1) Where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or any deduction has been wrongly made therefrom , the assessing authority may, at any time within four years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgment the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction that has been wrongly made and assess the tax payable on such turnover after issuing a notice on the dealer and after making such enquiry as it may consider necessary: The said section enables the assessing authority to bring to tax the turnover, which has escaped assessment or has been assessed at a rate lower than the rate at which it is assessable or that deduction has been wrongly made. The section enables the assessing authority to do so for whatever reason the turnover has escaped assessment. WE are of the view that even if there is a mere change of opinion, there is no fetter in S. 19 of the Act disabling the assessing authority to assess the escaped turnover. A mere change of opinion on the same material will be sufficient to reopen the assessment. This has been so held by Bench decisions of this Court reported in R. S. Narayana Shenoi v. State of Kerala (12 STC 665), George v. Sales Tax Officer (1963 KLJ 769) and K. K. Ismail v. The State of Kerala (43 STC123 ). The said Bench decisions are in accordance with the decision of the Supreme Court in Maharajadhiraj Sir Kameshwar Singh v. State of Bihar (37 ITR 388), where a statute in pan materia was considered by the Supreme court. In the light of the above Supreme Court and the Bench decisions of this court, we are of the view, that the Appellate Tribunal was in error in holding that on a mere change of opinion, the assessing authority cannot reopen the original assessment. In this connection, we would also state that the wide observations contained in the Bench decision of this Court in K. K. Sankaran Nair v. State of Kerala (33 STC 32) at pp. 35 & 36, to the effect that in construing section 19 of the Kerala General Sales Tax Act, the principles laid down under the Income Tax Act in construing section 147 of the said Act must apply, was more in the nature of "obiter". WE are also of the view that the observations were made per incuriam. The earlier binding decisions of the Supreme Court and the Bench decisions of this court were not adverted to, in making the said observations in paragraph 7 of the judgment. WE set aside the order passed by the Tribunal, dated 29th january, 1990. The Tax Revision Case is allowed. . .