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TMI Blog1976 (3) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned therein with one or more of the organic manures would also come within that entry. In the assessment years 196263 to 1965-66, the assessee claimed exemption In respect of the mixture manures on the ground that the manufacture of manure mixtures does not involve any manufacturing process and does not also involve any chemical change of the organic ingredients and that, therefore, they are not commercially different goods. On that basis, the assessee claimed that the sale of manure mixture is a second sale in the State as it was made of the organic chemicals purchased by them. The assessing authority found from a check of the records that the assessee had not only purchased organic chemical fertilisers within the State but also a good portion of the turnover related to purchase from outside the State. In respect of the chemicals purchased by the assessee from outside the State, the assessing officer considered that the sale of the same by the assessee would be the first sale within the State and that, therefore, under entry 21 that turnover is liable to be taxed. He also found that the assessee had not been keeping separate accounts for the first and subsequent sales and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Hence these revision petitions. The question whether the manure mixture is commercially a different commodity and that, therefore, the sale of the same is to be treated as first sale in the State is covered by the authority and against the assessee. In Imperial Fertiliser and Company v. State of Madras [1973] 31 S.T.C. 390., a Division Bench of this Court, to which one of us was a party, considered almost an identical question. In that case also, the assessee purchased various items of chemical manure referred to in item 21 of the First Schedule and by mixing one or more of the said articles with one or more of any organic manure he produced certain manure mixtures. The question for consideration was whether the turnovers relating to the mixture were liable to be taxed. It was held that for getting an exemption on the ground that it is a second or subsequent sale, the assessee had to establish that there has been a sale of the same goods at an anterior point of time and if there was no identity between the product sold and that which was purchased by the assessee, it was not possible to treat the sale by the assessee as a second sale. This view was followed by a subsequent deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause against such assessment. (b) Where, for any reason, the whole or any part of the turnover of business of a dealer has been assessed at a rate lower than the rate at which it Is assessable, the assessing authority may, at any time within a period of five years from the expiry of the year to which the tax relates, reassess the tax due after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such reassessment." In one of the earliest cases In State of Madras v. Louis Dreyfus and Company Ltd.[1955] 6 S.T.C. 318 (F.B.)., which considered a corresponding provision in rule 17 of the Madras General Sales Tax Rules, a Full Bench of this Court observed: "The 'escape' that serves as the foundation of the jurisdiction to reopen an assessment is that of 'turnover' and not, be it noted, an assessment. 'Turnover' escapes when it is not noticed by the officer either because it is not 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnover was before him, did not Include it in the taxable turnover on the ground that it was not liable to tax. Subsequently, by a notice dated 29th October, 1963, the Deputy Commissioner of Agricultural Income-tax and Sales Tax, who is the revising authority, proposed to revise the assessment under section 15(1) of the Travancore-Cochin General Sales Tax Act, 1125 M.E. Under section 15(1), the Deputy Commissioner may suo motu call for and examine the record of any order passed or proceeding recorded under the provisions of the Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding and may pass such order with respect thereto as he thinks fit. This power could be exercised by the Deputy Commissioner within a period of four years from the date on which the assessment order was communicated to the assessee. Under rule 33(5) read with rule 33(1) of the Travancore General Sales Tax Rules, 1950, framed under the Travancore-Cochin General Sales Tax Act, if for any reason the whole or part of the turnover of business of a dealer has escaped assessment to the tax in any year, the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nover, under rule 17(3-A), the Deputy Commissioner could rely, while revising an order of the assessing authority, on section 12(2). But the scheme of the present Act is different. While the assessing authority's jurisdiction is dealt with under section 16, the Deputy Commissioner's power to revise is found under section 32. Therefore, the words "escaped turnover" In section 16 and the words "illegality, impropriety or irregularity" in section 32, in our opinion, have to be understood in the context in which it is now found in the Act. The Supreme Court in State of Kerala v. M. Appukutty[1963] 14 S.T.C. 242 (S.C.)., Deputy Commissioner v. Dhanalakshmi Vilas Cashew Co.[1969] 24 S.T.C. 491 (S.C.). and State of Kerala v. K. E. Nainan[1970] 26 S.T.C. 251 (S.C.). considered the words "escaped turnover" in the context of the power given to the same authority to revise an assessment on the ground of illegality and impropriety and, therefore, their Lordships have restricted the scope of these words "escaped turnover". In the absence of such different provisions vesting the power on the same authority, we are of the view that a restricted meaning either for the words "escaped turnover" or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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