ANUPLAL SOHAN LAL Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) This is a revision for the assessment year 1978-79 against the Tribunal's order dated 20th May, 1986, affirming the order of the Assistant Commissioner (Judicial), remanding the case to the assessing officer to re-do the reassessment.

(2.) The assessee carried on business of brick-kiln during the year. The case of the assessee was that the kiln remained under operation up to 19th June, 1978. The assessing officer made best judgment assessment. Later the assessing officer reopened the assessment under Section 21 of the U. P. Sales Tax Act, 1948, and estimated the turnover at a much higher figure. The assessee appealed to the Assistant Commissioner (Judicial) who remanded the case to the assessing officer. The Tribunal affirmed the order of the Assistant Commissioner (Judicial).

(3.) The only question for consideration, is whether the assessing officer validly exercised the jurisdiction under Section 21 for making the reassessment. I have heard learned counsel for the parties. The contention of the assessee is that it was merely a change of opinion, and there was no discovery of any new facts warranting the invocation of jurisdiction under Section 21 of the Act. The contention of the learned Standing Counsel is that in the original assessment order, the kiln was taken to have been closed only on 19th June, 1978, but later it was discovered by the assessing officer that the assessee had made purchases of coal after June, 1978 and on that basis it was viewed that the production was more and the turnover, as estimated in the original assessment was under-assessed. The undisputed facts are that even in the reassessment order, the period of operation of the kiln has not been taken greater than the period taken in the original assessment. This is not the case of the assessing officer in the reassessment order that the purchases of coal which he discovered after having made the original assessment were utilised during the year 1978-79 after June, 1978. The case of the assessee that the kiln was not operated in the second season at all, has not been rejected in the reassessment order and no finding has been given that the kiln remained under operation in the second season also. What the assessing officer has done in "the reassessment order is that he simply estimated the turnover at a higher figure without giving any finding that the kiln remained under operation in the second season as well, or for more period in the first -season, and that there was more production on that account during the year. From a perusal of the order, it appears, that the assessing officer exercised jurisdiction under Section 21 of the Act only to rewrite the order in an improved manner giving more reasons than those what he gave in the original order. Section 21 cannot be resorted to for this purpose. The assessing officer has not given any reason, and the facts, which might have enabled him to come to the conclusion that due to suppression or non-disclosure of certain facts, the original assessment resulted into under-assessment. This being so, the initiation of reassessment proceedings cannot be said to be valid and no good reason has been given by the Tribunal to support the initiation of the reassessment proceedings. The approach of the Tribunal is that in the original assessment order, the assessing officer omitted to consider all important things, except the capacity. The reasoning given by the Tribunal cannot justify the initiation of the reassessment proceedings. The question before the assessing officer was as to what is the correct turnover of the brick-kiln business. To assess turnover, the assessing officer would take into consideration all possible things to justify the assessment. Once he makes the assessment, he becomes functus officio and the assessment so made becomes final unless it is reopened for valid reasons under Section 21. No assessment can be reopened only on the ground that all possible reasons were not given in the original assessment order. Recourse to Section 21 cannot be taken only for giving additional reasons. It is only when whole or any part of the turnover of a dealer has escaped to tax, or has been under-assessed, or has been assessed to tax at a lower rate, or any deductions or exemptions have been wrongly allowed, the assessing authority may reassess the dealer. In the reassessment order the assessee has been assessed for the same period for which he was assessed in the original assessment, and, therefore, the argument of the learned Standing Counsel, that the higher assessment could have been made on the basis of the purchases of coal that were discovered after the original assessment, cannot be accepted. If the higher assessment were based on the discovery of purchases of coal, then the assessment would have been made for the period posterior to 19th June, 1978 but that has not been done. It means that the assessing officer reviewed the original assessment not on the grounds envisaged by Section 21, but on the grounds which he would have considered even at the stage of the original assessment. As already stated, assessment cannot be made at different stages but only once, unless the case is covered under Section 21 of the Act. The approach of the Tribunal is that the assessing officer can furnish new reasoning and can consider all those matters which he would have considered at the stage of the original assessment. If this approach is endorsed, then it would mean that an assessment can be made at several stages by giving some of the reasonings and by considering some of the aspects of the case at one stage and some at the other stage. Such an approach has to be rejected.