1973 (3) TMI 126 - HC - VAT and Sales Tax

Summary

Issues:
1. Jurisdiction of the Tribunal to pass an order under rule 83 of the Orissa Sales Tax Rules, 1947.
2. Legality of assessment under section 12(8) without prior assessment under section 12(5) of the Orissa Sales Tax Act.

Analysis:

Issue 1: Jurisdiction of the Tribunal under rule 83 of the Orissa Sales Tax Rules, 1947
The Tribunal allowed a review application under rule 83 of the Orissa Sales Tax Rules, 1947, which permits correction of arithmetical or clerical mistakes or errors apparent on the face of the record. However, the rule does not authorize revisiting the merits of a judgment or correcting errors of law or fact. The Supreme Court has clarified that this rule does not allow re-argument on merits or raising new arguments not previously advanced. The Tribunal exceeded its jurisdiction by entertaining the review application and assessing the records to determine if there was a prior assessment under section 12(5) of the Act. The High Court held that the Tribunal acted illegally in examining the legality of the assessment under rule 83.

Issue 2: Legality of assessment under section 12(8) without prior assessment under section 12(5)
The Tribunal's view that an assessment under section 12(8) is not maintainable without a prior assessment under section 12(5) was deemed erroneous by the High Court. The Court emphasized that the term "escaped assessment" in section 12(8) encompasses turnover that has not been assessed at all, even if no notice was issued under section 12(5 or no assessment was conducted. The Court relied on precedent to establish that the authorities can proceed with an assessment under section 12(8) even without a prior assessment under section 12(5). The Court clarified that the legality of the assessment under section 12(8) is not contingent upon a prior assessment under section 12(5), and the turnover can be assessed under section 12(8) irrespective of the existence of a prior assessment.

In conclusion, the High Court answered both questions in the negative, affirming the maintainability of the assessment under section 12(8) without a prior assessment under section 12(5. The references were accepted with costs, and the judgment was delivered by Misra G.K., C.J., and Acharya S., J.