9911796707
TMI Blog1966 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... nces and Berar Sales Tax Act, 1947 (hereinafter referred to as "the repealed Act"). For the period from 3rd November, 1956, to 23rd October, 1957, the respondent filed his return, which was not accepted by the Sales Tax Officer, who, on March 10, 1959, issued a notice in Form XII to the respondent. Subsequent to this notice, on May 23, 1959, the turnover of the sales of the respondent was assessed to tax under section 11(4)(a) of the repealed Act. In the meantime, on April 1, 1959, the Madhya Pradesh General Sales Tax Act, 1958 (Act No. 2 of 1959) (hereinafter referred to as "the new Act") came into force. On October 23, 1962, the Sales Tax Officer discovered that part of the turnover of the respondent for the period mentioned above had esc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act, during any year has been under- assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the expiry of such year, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed, in such manner as may be prescribed, to reassess the tax payable on any such sale or purchase and the Commissioner may direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount: Provided that in the case of an assessment made under any Act repealed by section 52, the period of reassessment on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orward on behalf of the respondent. The facts given by us above clearly show that the original assessment of the respondent was in respect of a period when the new Act had not come into force. The respondent had filed the return, and even the notice in that connection was issued by the Sales Tax Officer prior to the enforcement of the new Act. The actual order of assessment was made on 23rd May, 1959, shortly after the new Act had come into force. The mere enforcement of that Act by the time the order of assessment was passed by the Sales Tax Officer cannot lead to the conclusion that the assessment of the respondent was made under the new Act and not under the repealed Act. It was under section 52 of the new Act that the repealed Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liabilities were thus preserved by section 52 of the new Act. The assessment which was completed in the case of the respondent on 23rd May, 1959, was therefore, an assessment in accordance with the rights and liabilities of the respondent under the repealed Act; and this being so, it has to be held that the proviso to section 19(1) of the new Act was applicable to the case of the respondent. As a result of this proviso, the period of reassessment on the ground of under-assessment, escapement or wrong deduction in the case of the respondent had to be as provided in section 11A(1) of the repealed Act, so that the period was three years and not five years as laid down by section 19(1) of the new Act. The notice dated 23rd October, 1962, was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account the effect of this subsequent amendment, we should hold that the Sales Tax Officer was not incompetent to make the assessment when he purported to issue the notice on 23rd October, 1962, as the notice was issued within the period of five years laid down in the principal clause of section 19(1) of the new Act. It is, however, significant that, though the principal clause of section 19(1) was amended, the proviso to it was not deleted by the Amending Act. The proviso, therefore, continued to remain in force. It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the Legislature desires should be excluded. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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