(1.) THESE relate to the assessment to sales tax on the revision petitioner in proceedings under section 19 (1) of the Kerala General Sales Tax Act, 1963, for the three years 1962-63, 1963-64 and 1964-65. They raise a common question. We propose to deal with these cases by a common judgment.
(2.) THOUGH as many as eight questions of law, said to arise from the order of the Tribunal, have been formulated in these tax revision cases, counsel for the revision petitioner has urged before us only two questions. His first submission was that the proceeding under section 19 (1) was not justified. This contention was exclusively based on the wording of section 19. That section is in these terms : " 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 : Provided that before making an assessment under this sub-section the dealer shall be given a reasonable opportunity of being heard. (2) In making an assessment under sub-section (1), the assessing authority may, if it is satisfied that the escape from assessment is due to wilful non-disclosure of assessable turnover by the dealer, direct the dealer to pay, in addition to the tax assessed under sub-section (1), a penalty not exceeding one and a half times the tax so assessed : Provided that no penalty under this sub-section shall be imposed unless the dealer affected has had a reasonable opportunity of showing cause against such imposition. (3) The powers under sub-section (1) may be exercised by the assessing authority even though the original order of assessment, if any, passed in the matter, has been the subject-matter of an appeal or revision. (4) In computing the period of limitation for the purposes of this section, the time during which the proceedings for assessment remained stayed under the orders of a civil court or other competent authority shall be excluded. " Referring to the latter part of the section counsel urged that the tax to be imposed is on the turnover which had escaped assessment and that referring to the definition of the word "tax" it was contended that the turnover had not escaped assessment and, therefore, section 19 was inapplicable. To understand this contention a few facts have to be stated.
(3.) WE have therefore to take it for the purpose of these tax revision cases that the business said to have been conducted by the "bharath Timbers" was really the business of the revision petitioner and that the turnovers pertaining to the case for the three years were really the turnovers of the revision petitioner. The question is whether because there have been assessments made against the Bharath Timbers for the three years the Sales Tax Officer is precluded from proceeding under section 19 (1) of the Act. WE do not think so. What the section deals with is the turnover of a dealer which had escaped assessment. The relevant portion of the section reads : " Where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax. " The words are "turnover of business of a dealer". The revision petitioner was a dealer. On the findings entered by the Tribunal it is his turnover that had escaped assessment. So section 19 (1) of the Act is attracted. The same view has been taken by the Madhya Pradesh High Court in the decision in Daluram Pannalal Modi v. Assistant Commissioner of Sales Tax, Indore, and Others ([1962] 13 S. T. C. 759 ). This decision of the Madhya Pradesh High Court has been approved by the Supreme Court in Daluram Pannalal Modi v. Assistant Commissioner of Sales Tax, Indore, and Others ([1963] 14 S. T. C. 675 (S. C.) ). On the facts found in these cases we have to take it that the Bharath Timbers did not exist because they had no business and they had no turnover. So the principle of these decisions must apply.