TMI Blog1967 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... esented sales of candles to purchasers outside the Madras State and despatched by the petitioner himself through lorries and trains. In the railway receipt or the lorry receipt the assessee noted his name as the consignor and the buyer's name as the consignee. The sales tax department in the orders mentioned above concluded that the transactions were sales completed in the Madras State and assessed them under the Madras General Sales Tax Act of 1959. The officer who made these assessments was the Deputy Commercial Tax in 1963-64, the Deputy Commercial Tax Officer was of the opinion that sales of the same description should have been really assessed under the Central Sales Tax Act because the transactions occasioned the movement of the goods from one State to another thereby attracting the definition of a sale in the course of inter-State trade or commerce given in section 3 of the Central Sales Tax Act, 1956. Not merely did he make the assessment thus under the Central Sales Tax Act on the corresponding turnover for 1963-64, but he also felt called upon to reassess the corresponding turnovers already assessed as stated above under the Madras General Sales Tax Act for the four years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of section 34 of the Indian Income-tax Act of 1922. Section 34(1) is in the following terms: Section 34(1): "If-(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed. he may in cases fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot before him by reason of an inadvertence, omission or deliberate concealment on the part of the assessee, or because of want of care on the part of the officer, the turnover though in the books has not been taken notice of. This would be the natural and normal meaning of the expression 'turnover which has escaped' in rule 17(1). There is no real analogy between rule 17(1) of the Madras General Sales Tax Rules, 1939, and the provisions of section 34 of the Indian Income-tax Act, 1922." Relying upon these observations learned counsel contended that the turnover now assessed was before the assessing officer on the earlier occasion, that he took it into account, but decided according to the best of his reasoning, that it should be assessed only under the Madras Act; but what we have here is an alteration of opinion by a subsequent Deputy Commercial Tax Officer leading to a reassessment and not any of the situations mentioned in the Full Bench decision, such as failure to notice the turnover in question by reason of inadvertence, deliberate concealment, or want of care, etc. In N. Naganatha Iyer v. Commissioner of Income-tax[1966] 60 I.T.R. 647., a Bench of this court dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cultural income, but subsequently the Privy Council reversed that decision holding that such an income was not agricultural income. Thereupon the Income-tax Officer initiated reassessment proceedings and the Supreme Court held that the correct view of the law as laid down subsequently by the Privy Council should be treated as "information" giving jurisdiction to reassess under section 34(1)(b). It was urged by the learned counsel Sri Parasaran that the present is not a case where the law had altered, and one earlier authoritative view of the law had been replaced by another view. What has happened is that the subsequent assessment officer considered that the view taken by his predecessors-inoffice was wrong without any fresh information or without any fresh authoritative decision of a court of law about the correct position of the law. He contended that this point was left open by the Supreme Court in the concluding portion of their judgment in the report abovementioned. He therefore urged that, in this state of the law, it cannot be held that the assessing officer in the present case acted properly within the jurisdiction conferred under rule 5(7) to assess the escaped turnover. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and by a subsequent order refix the turnover at an enhanced amount and assess the tax on the revised turnover, relying for that purpose on section 16(1) of the Madras General Sales Tax Act, 1959, which, as observed earlier, is in pari materia, with rule 5(7) of the Central Sales Tax Rules. In view of these authoritative statements on the interpretation to be given to the terms of rule 5(7) of the Central Sales Tax Rules as well as section 16(1) of the Madras General Sales Tax Act, 1959, it will not be proper to hold that the Deputy Commercial Tax Officer in this case had no jurisdiction to reassess the earlier assessment which had been made under the Madras General Sales Tax Act, on the ground that the earlier assessment did not properly interpret the provisions of the Central Sales Tax Act regarding the inter-State sales, and that, on the correct view of the relevant provisions, the turnover should have been assessed only under the Central Sales Tax Act and not under the Madras General Sales Tax Act. I may incidentally observe that there was no attack at the time of the hearing about the correctness of the legal position about the assessability of the turnover in question under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orward, the petitioner was entitled to approach this court for remedy under Article 226 of the Constitution. But, in view of the consideration set out earlier, no relief can be afforded in these writ petitions because the decisions above-cited clearly give jurisdiction to the assessing authority for reassessing the escaped turnovers in this case. The petitions are dismissed. Before parting with the cases, I will refer to a representation made by the learned counsel for the petitioner with, in my opinion, a great deal of justification, that this is an unfortunate case where the assessee who had been made to pay assessment on the concerned turnover under the Madras General Sales Tax Act at a lower rate, is being reassessed on the same turnover under the Central Sales Tax Act at a higher rate, but without any assurance being given to him of the necessary refund where there had been excess realisations, or adjustment as the case may be. In the counter-affidavit of the department in these writ petitions, there is an averment for the purpose of meeting this complaint, that the assessment under the Madras General Sales Tax Act in respect of the turnover involved in these years will be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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