TMI Blog1985 (1) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 52,173.20 from the opening stock of Rs. 1,23,375.50. According to respondent No. 2, namely, the Commissioner of Sales Tax, the sales should have been enhanced by a sum of Rs. 52,173.20 plus 25 per cent profit, i.e., Rs. 13,043.20. Therefore respondent No. 2 proposed addition to the turnover at Rs. 65,216 and a levy of tax at Rs. 6,631.60. 4.. Petitioner No. 1 in response to the said notice explained the alleged discrepancy with reference to the certificate from the head office. According to the petitioner there was no discrepancy at all. The closing stock was valued at the time of transfer by the head office at Rs. 1,23,375.50 as per price list which included discount and profit margin of the company. Actual cost for the purpose of balance sheet was cost price according to the well-established principles of valuation of closing stock. The factual position could not be verified and proved with reference to the books of account as they were seized by the income-tax department and were in its possession. 5.. Respondent No. 2, therefore, could not verify the position as alleged by the petitioner in absence of the books of account and hence he remitted the case back to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of jurisdiction. 7.. Against the said order the petitioner has filed an appeal, which is also pending. But in the meanwhile he has filed the present petition on the ground that respondent No. 1 could not act and proceed beyond the wording of the remand order passed by respondent No. 2 and consequently the original assessment having been completed in 1974, he had no jurisdiction to reassess the petitioner on the ground of escaped assessment. Further, according to the petitioner, the appellate authority has deferred to decide the appeal pending before him on the ground that the matter is sub judice before this Court. Hence this petition. 8.. The respondents in their returns have submitted that the remand order (annexure 10) directs fresh assessment for the period in question as the original assessment order was set aside. Further, according to the respondents, if the assessee was desirous of the production of the accounts which were seized by the income-tax department, it was open to the assessee to have made an application under section 35(1) of the said Act. Further, according to the respondents, since the time-limit to decide the case was expiring on 31st December, 1981 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that the same was remanded for a specific purpose. It is also interesting to note that the assessing officer after the remand by the impugned order dated 31st December, 1981 (annexure 20), maintained the same figure of Rs. 6,62,242.00 which he had taken as correct in the original assessment order towards the sale. But as he felt that this was a case of escaped assessment, he assessed the petitioner on that basis accordingly by the said order. 11.. The learned counsel for the petitioner mainly contended that the impugned order of the respondent is bad in law because it is beyond the scope of the powers of assessment for giving effect to the order of remand; that respondent No. 1 had no jurisdiction to assess escaped turnover in proceedings for giving effect to the order of remand, as he was bound by the direction of respondent No. 2 and could not travel beyond the scope of the remand order; that the order of remand being specific which authorised the scrutiny of stock position only, the respondent No. 1 had no power or authority to make enquiries at large and tax the turnover which was not the subject-matter of the order of respondent No. 2; that respondent No. 2 had him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of such proceedings, the tax payable by such dealer and the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, 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 for reassessment on the ground of under-assessment, escapement or wrong deduction shall be as provided in such Act notwithstanding the repeal thereof: Provided further that any reassessment proceedings pending on the date of commencement of the Madhya Pradesh General Sales Tax (Amendment) Act, 1978 (No. 25 of 1978), be completed in accordance with the provisions in force before the date of such commencement and within a period of two calendar years from the date of such commencement. (2) The reassessment made under sub-section (1) shall be at the rate at which it would have been made had there been no under-assessment or escapement or wrong deduction. (3) If for any reason the licence fee, registration fee or exemption fee has escaped levy or has been charged at a lower rate in any year, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinarily this point should have been left to the decision of the appellate authority. But it is apparent that the appellate authority is not inclined to decide the same in view of this pending petition. Therefore, we are of the opinion that as the point raised is about jurisdiction of the assessing authority, we can consider the same in this petition. 16.. The jurisdiction of the revising authority under section 39(2) is confined to the legality and propriety of the order passed by the appellate and/or the assessing authority if he considers it to be erroneous in so far as it is prejudicial to the interest of the revenue. It is not the forum to overcome the limitation. A remand could not be directed to fill up the lacuna. It is not meant to provide fresh opportunity. In any case resort to this method to overcome limitation is not permissible in law. A revising authority has no power to remand the case to the assessing authority directing him to proceed afresh with the assessment proceedings after taking into consideration matters which had escaped notice earlier, though in the present case the remand order in no way refers to any escaped assessment but it has directed the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the learned counsel for the respondents tried to contend that if the assessing authority has misinterpreted the remand order or while going through the accounts it has come to its notice that the petitioner can be held liable for escaped assessment, merely because he has misinterpreted the remand order, the same cannot be interfered with in this petition. However, considering the facts and circumstances of the case, we are not persuaded to agree with this submission as the original assessment has not at all been set aside by the revisional authority but he has remanded the same for a specific purpose and consequently it is clear from the impugned order (annexure 20) that the assessing authority, namely, respondent No. 1, has proceeded to start afresh assessment proceedings for the same period on the alleged ground of escaped assessment especially when the original order of assessment had become final and the remand order being quite clear gives no scope of any other interpretation. 21.. In the result this petition succeeds and is allowed with no order as to costs. The impugned order, annexure 20 dated 31st December, 1981, passed by respondent No. 1 is quashed and set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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