TMI Blog1981 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... years 1967-68 and 1968-69 under section 20(3) of the Bengal Finance (Sales Tax) Act, 1941? (2) Whether, on the facts and in the circumstances of the case, proceedings under section 11A of the Act aforesaid and not under section 20(3) should have been taken? (3) Whether poultry feed is a tax-free item under entry No. 33 of the Second Schedule of the Act aforesaid? (4) Whether, on the facts and in the circumstances of the case, best judgment assessment can be made by the learned Assistant Commissioner under section 20(3)?" M/s. Delhi Consumers' Co-operative Wholesale Store Ltd., Karampura, New Delhi, were registered dealers under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called "the Act"), as extended to the Union Territo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer also pleaded that in any case it was a case of escaped assessment and proceedings, if any, should have been taken under section 11A of the Act and could not be taken under section 20(3) of the Act. All these contentions were rejected by the learned Financial Commissioner. He held that this was not a case of escaped assessment because the information was not available on the record at the time of framing of assessment but it was subsequently reported that the petitioner had concealed the sales of the poultry feed and as such the Assistant Commissioner had rightly revised the assessments under section 20(3) of the Act. The learned Financial Commissioner also found that poultry feed did not fall under entry 33 of the Second Schedule of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of this Act and the Rules made thereunder shall, so far as may be, apply accordingly for the purpose of the assessment or reassessment of the tax, as the case may be. Section 20. (2) Subject to such rules of procedure as may be prescribed, the appellate authority, in disposing of any appeal under sub-section (1), may- (a) confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed. Section 20. (3) Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon application or of his own motion may revise any assessment made or order passed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the information was not available on record at the time of framing of assessment and it was subsequently reported that the petitioner had concealed the sales of the poultry feed. This reasoning itself leads to the conclusion that the turnover of the assessee had escaped assessment. Number of authorities were cited by the counsel for the parties at the Bar, but it is not necessary to refer to all those authorities in view of the clear pronouncements of their Lordships of the Supreme Court in two cases which we will refer to. In Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Dhanalakshmi Vilas Cashew Co.[1969] 24 S.T.C. 491 (S.C.)., the Supreme Court was concerned with the scope of the Deputy Commissioner's revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed in section 20(3) but they will be akin to the power of the appellate authority as mentioned in section 20(2). It was further held that the revisional authority, however, should not trench upon the power expressly reserved by the Act or the Rules to other authorities and cannot ignore the limits inherent in the exercise of those powers. Under section 3 of the Act, a hierarchy of officers has been constituted, namely, the Commissioner of Sales Tax, Sales Tax Officers and others to assist the Chief Commissioner. Section 11 of the Act deals with assessment of tax. The Sales Tax Officer exercising the power as an officer to assist the Commissioner under section 11(1) of the Act can proceed to assess the amount of the tax due from the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r can only be exercised under section 11A of the Act and that power lies only with the assessing authority and cannot be exercised under section 20(3) of the Act. As held in the case of Cheria Abdulla Co.[1965] 16 S.T.C. 875 (S.C.)., the power to hold an inquiry to take additional evidence is a procedural power in aid of the exercise of the revisional jurisdiction but such a power cannot be exercised in the case of escaped turnover by the revising authority because the power to reassess the escaped turnover is primarily vested by rule 71 in the assessing authority and is to be exercised subject to certain limitations and the revising authority will not be competent to make an inquiry for reassessing a taxpayer. As held by their Lordships ..... X X X X Extracts X X X X X X X X Extracts X X X X
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