NATHANI BROTHERS Vs. SALES TAX COMMISSIONER

JUDGEMENT

(1.) THIS is a reference under Section 23 (3) of the C. P. and Berar Sales Tax Act, 1947 (hereinafter called the Act), and the questions which the Tribunal was directed by us on 10th August, 1962, in M. C. C. No. 99 of 1961 to refer to us for decision are :

(2.) IN regard to the first question, Shri Sen, learned counsel appearing for Nathani Brothers, made the submission that the Sales Tax Commissioner had no jurisdiction under Section 22-B to revise the order of the Sales Tax Officer ; that if the Sales Tax Officer had wrongly held that the sale transactions in question were not liable to tax then it was a case of escaped assessment, which could be reopened only under Section 11-A of the Act within the prescribed period of limitation ; and that in the present case limitation under Section 11-A had expired. Learned counsel relied on a decision in Purushoitam Kalidas v. Commissioner of Sales Tax 1961 M. P. L. J. 35 where it has been held that the power of revision under Section 22-B of the Act cannot be exercised to tax a turnover which has escaped assessment.

(3.) IN our opinion, there is no substance in the contention raised by the learned counsel. It has been held by a Division Bench of this Court in Kanhaiyalal v. Commissioner of Sales Tax 1961 M. P. L. J. 52 that the expression "any information which has come into his possession" used in Section 11-A means information which has come into his possession subsequent to the making of the assessment order in question; that if on information in his possession at the time of the passing of the assessment order the Sales Tax Officer takes a certain vie of facts and figures and of the prevailing la and holds that certain transactions are not liable to tax under Section 27-A (1) (b), he cannot subsequently on the basis of the information which was already in his possession and within his knowledge act under Section 11-A; and that such a case would be a case of mere change of opinion on the same state of facts and not a case of finding as a result of ne information that the dealer had escaped assessment in some respect. In the present case also the assessment which the Sales Tax Officer made taking a certain vie of the facts or the la was sought to be revised not because of any in formation received subsequent to the assessment but because of the differing opinion which the Sales Tax Commissioner entertained about the matter. The revision was therefore clearly not one falling within the ambit of Section 11-A. If Section 11-A is not attracted to the case, then there is no impediment to the exercise of the revisional powers by the Commissioner under Section 22-B. On the basis of the decisions in the cases of Purusholtam Kalidas 1961 M. P. L. J. 35 and Kanhaiyalal 1961 M. P. L. J. 52 the first question must be answered in the affirmative.