RAMASWAMI Vs. STO PONNANI

JUDGEMENT

(1.) The petitioner was assessed to sales tax for the year 1957-58 on a net turnover of Rs. 4,61,837.52 p. under the General Sales Tax Act, 1125, hereinafter referred to as the Act. This included the turnover on the sugar estimated at Rs. 38,470.50 p. purchased by the petitioner from dealers at Mattancherry and Trichur. The tax payable by the petitioner was determined at Rs. 9,236.76 p. and the surcharge at Rs. 230-93 p. The copy of the assessment order is Ex. P 1. The petitioner had paid the tax. About five years after the end of the assessment year in question i.e., on 18th February 1963 the Deputy Commissioner, the 2nd respondent, in the exercise of his power under S.15(1)(i) of the Act, issued a notice to the petitioner informing him that the turnover of the sale of sugar purchased by him from the dealers at Mattancherry and Trichur was liable to an additional sales tax of one anna per rupee and proposed to levy the additional sales tax on a turnover estimated at Rs. 39,964.26 p. Ex. P 2 is a copy of that notice. The petitioner filed his objection, a copy of which is marked Ex. P 3. In the objection the petitioner questioned the jurisdiction of the 2nd respondent to levy enhanced tax and contended that the proposed levy was barred by limitation under R.33 of the General Sales Tax Rules, 1950. The petitioner also contended that the quantum of the turnover estimated by the 2nd respondent was wrong. After the receipt of the objection the 2nd respondent communicated to the petitioner the details of the value of the sugar purchased by him from dealers at Mattancherry and Trichur as amounting to Rs. 37,349.78 p. The 2nd respondent thereafter passed the order dated 20th March 1963 holding that petitioner was liable to pay an additional sales tax of one anna per rupee on the sale turnover of sugar purchased by the petitioner from the dealers at Mattancherry and Trichur. Ex. P 6 is the copy of that order. Pursuant to this order, the 1st respondent has revised the original order and assessed the petitioner to an additional tax at the rate of 6 p. in the rupee on the turnover of sugar estimated by the 2nd respondent at Rs. 39,964-26 p. and determined the additional tax payable by the petitioner at Rs. 2,397-84 p. and the additional surcharge at Rs. 9.99 p. Ex. P 7 is the copy of the order.

(2.) From these orders it is clear that respondents 1 and 2 have enhanced the turnover of sugar from Rs, 38,470.50 p. to Rs. 39,964.26 p. and reassessed the same by levying the enhanced rate. The petitioner questions the validity of these orders mainly on the ground that the 2nd respondent had no jurisdiction to reopen the matter after the period of limitation prescribed in R.33 of the General Sales Tax Rules, 1950. Sub-r.(1), (2), (4), (5) and (8) of R.33 are as follows:-

(3.) In Narayana Shenoi v. State of Kerala 12 STC 665 it was held differing from the view expressed by the Full Bench in State of Madras v. Louis Drevfus and Company Ltd. 6 STC 318 that R.33 was not confined to cases where the turnover has escaped assessment, where the officer by reason of inadvertence, omission or deliberate concealment failed to include the particular turnover, but would include also cases where the turnover escaped assessment because the officer committed an error in the original assessment. In that case the following observation of the Supreme Court in Maharaj Kumar v. Income Tax Commissioner 35 ITR 1 was quoted by the learned Judges to support their conclusion.