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2021 (2) TMI 245 - HC - VAT and Sales TaxMaintainability of petition - availability of statutory appeal remedy of appeal - Reopening of assessment - Exemption from tax or not - tea dust - soap - hand made matches - Section 84 of the TNVAT Act - AO rejected the petition on the ground that the power under Section 84 can be invoked only for correction of clerical and arithmetical mistakes alone and therefore, the petition is not maintainable - HELD THAT:- There is a primordial mistake committed by the Assessing Officer by invoking Section 84 of the Act for reopening the assessment. Mr.Mohammed Shaffiq, learned Special Government Pleader appearing for the respondent is right in his submission that power to reopen assessment is traceable to Section 27 of the TNVAT Act. It is the further submission of the learned Special Government Pleader that at best making a reference to Section 84 of the Act in the show cause notice dated 30.04.2014 can be treated as quoting a wrong provision and if the goods sold by the appellant- Society to the fair price shops are exigible to tax, then there is an error in the assessment, which needs to be rectified. Under normal circumstances, we would have laboured on this issue, but the facts of the present case precludes us from doing so. It is not as if the Assessing Officer was not aware of what was the scope of his power under Section 84 of the Act as could be seen from the order dated 09.10.2014, wherein he states that the power can be exercised only for correction of clerical and arithmetical mistakes - thus it cannot be accepted that the submission that referring to Section 84 in the show cause notice dated 30.04.2014 was quoting a wrong provision of the Act. In any event, if the assessment has to be reopened, it requires to be done in terms of Section 27(1) of the Act. The Assessing Officer is bound to disclose as to under which Sub-Section, he proposes to bring the case of the dealer for assessing the turn over on the ground that the sale has escaped assessment or the dealer has been assessed at a lower rate than the rate at which it is assessable. A plain reading of the show cause notice dated 30.04.2014 will clearly show that there is no such proposal made by the Assessing Officer assuming the Assessing Officer invoked his power under Section 27(1) of the Act - the Assessing Officer did not go into the correctness of the claim made by the appellant by referring to G.O.P.No.272, Revenue dated 11.02.1967, which was issued when the erstwhile Tamil Nadu General Sales Tax Act was invoked and the Entry 43 of Part B of Fourth Schedule of the TNVAT Act. The reopening of the assessment is bad in law - If we are to approve the stand taken by the Assessing Officer in the order dated 09.10.2014 and hold that the power under Section 84 of the Act is to correct only arithmetical and clerical mistakes, then we have to consequently hold that the reopening of the assessment invoking Section 84 of the Act vide notice dated 30.04.2014 and the consequential revised assessment order dated 09.06.2014, as illegal. Petition is allowed.
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