STATE OF ANDHRA PRADESH Vs. HOTEL GANESH

JUDGEMENT

(1.) This T.R.C. is directed against the order of the Sales Tax Appellate Tribunal in T.A. No. 811 of 1985 dated 3/03/1987. The State is the petitioner. In the assessment year 1977-78 the respondent-assessee which is a dealer registered under the Andhra Pradesh General Sales Tax Act, 1957, hereinafter referred to as "the Act", was assessed to sales tax by order dated 13/07/1978. That order was served on the assessee was served on the assessee on 10/12/1978. The assessee carried the matter in appeal before the deputy Commissioner (C.T.). By order dated 18/02/1980, the appellate authority allowed the appeal and remanded the case for disposal in accordance with law after deciding the question with regard to the supply of foodstuffs effected by them as to whether it constituted sale. After remand the assessing authority passed a fresh order of assessment on 30/03/1983, which on the assessee on 12/04/1983. By order dated 13/07/1985, in R.R. No. 7/84-85 the Deputy Commissioner passed orders purporting to receive the order passed by the assessing authority on 13/07/1978,. The order pertains to two aspects, the first is with regard to grant of exemption by the assessing authority after remand. So far as this aspect is concerned there is no dispute. The controversy, however, relates to the second aspect of the order by which the Deputy Commissioner added a sum of Rs. 2,22,388 as part of the turnover which has escaped assessment in exercise of power under section 14(4-C) directing that the said turnover be taxed at the rate of 4(1/2) per cent. Aggrieved by the said order of the Deputy Commissioner, the assessee went in appeal before the Sales Tax Appellate Tribunal. The Tribunal took the view that as the Assistant Commissioner (C.T.), Appeals, did not set aside the order of assessment dated 13/07/1978, on the ground of the same being void but considering the question whether the supply of foodstuffs, was by way of service in the hotel or was a sale across the counter, as such for purposes of calculating the limitation the starting point should be from 10/12/1978, the date of passing of the original order of assessment but not from 30/03/1983, when the fresh order of assessment was passed by the assessing authority after remand. It, however, rejected the contention that the Deputy Commissioner could have passed the order under section 20(2) of the Act but held that the exercise of power was beyond the limitation. The appeal was partly allowed on 3/03/1987. It is the correctness of this order that is assailed in this T.R.C. as noted above.

(2.) The learned Government Pleader has contended that for the purpose of exercise of the power under section 14(4) the limitation will have to be counted from the last order of assessment, i.e. from 30/03/1983 and not from the first order of assessment, 13/07/1978, and if it is so counted the exercise of power will be within the limitation.

(3.) Mr. A. K. Jaiswal, the learned counsel appearing for the respondent-assessee, on the other hand, submits that no part of the additional turnover was the subject-matter of the order of assessment passed pursuant to the remand order, therefore the limitation ought to be counted for 13/07/1978, and the Tribunal has rightly held that the exercise of the revisional power was not within the limitation.