TMI Blog1989 (2) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed on 30th July, 1984. In the meanwhile, the Deputy Commissioner of Sales Tax noticed that the assessee had paid excise duty on foreign liquor to the tune of Rs. 12,70,624.10 and this point or aspect was totally ignored in the assessment. He initiated suo motu revision proceedings under section 35 of the Kerala General Sales Tax Act, by notice dated 26th August, 1985. The assessee objected to the initiation of proceedings. Notwithstanding the objections of assessee, the Deputy Commissioner of Sales Tax passed an order dated 4th October, 1985 setting aside the assessment for the year 1979-80 and directed the assessing authority to make a fresh assessment in accordance with law. The assessee took up the matter in appeal before the Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. On the other hand, counsel for the Revenue contended that though ordinarily the Deputy Commissioner of Sales Tax cannot revise the order of assessment, once it was subject of an appeal before the Appellate Assistant Commissioner under section 35(2) of the Act, the Deputy Commissioner can exercise the powers of revision under section 35(2A), on any point which has not been decided in an appeal or revision, before the expiry of a period of one year from the date of the order passed or within four years of the order of assessment. In this case, the excise duty paid by the respondent/assessee was not reckoned in the original assessment and it escaped assessment. The payment of excise duty was not denied by the respondent/assessee. That is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner or the Appellate Tribunal or of a revision in the High Court; or (c) more than four years have expired after the passing of the order referred to therein. (2A) Notwithstanding anything contained in sub-section (2), the Deputy Commissioner may pass an order under sub-section (1) on any point which has not been decided in an appeal or revision referred to in clause (b) of sub-section (2), before the expiry of a period of one year from the date of the order in such appeal or revision or before the expiry of the period of four years referred to in clause (c) of that sub-section, whichever is later. (3) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee" and the only question was whether "the taxable turnover assessed was adequate". The Appellate Tribunal further observed that within that genus, the species, quantum of excise duty paid will also be taken in. In other words, the point decided in the appeal should be taken to be the taxable turnover of the assessee. The adequacy of the turnover was the subject-matter of an appeal and so the Deputy Commissioner was incompetent to initiate proceedings under section 35(2A) of the Act. 5.. We are afraid that the Appellate Tribunal has failed to bear in mind the distinction between the "subject of an appeal to the Appellate Assistant Commissioner" dealt with in section 35(2)(b) of the Act, and "on any point which has not been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "; "something to be gained"; "something that one has proposed and is trying to get established or accepted "; "something that is the subject-matter of discussion or attention or concern"; "something (as a vital idea, an essential detail) that is important enough to require serious discussion or consideration". In the Concise Oxford Dictionary, it is specified thus: "Point" may take in a "detail" or "particular", etc. So, we hold that though the Appellate Assistant Commissioner dismissed the appeal from the original assessment on 30th July, 1984, "the point" regarding excise duty paid by the assessee was not in issue therein; nor considered or decided in the said appeal. 6.. In this view of the matter, we hold that the Appellate Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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