TMI Blog1992 (7) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... r is liable to pay tax? 3.. Whether in absence of material in support of sale, Tribunal was required to remit the matter back in view of the changed position of law?" Pursuant to direction, the Tribunal stated a case for opinion. 2.. On perusal of the questions framed, we find that they do not bring out true essence of dispute and therefore, as requested by parties, we reframe the questions. "1. Whether the reasons are to be indicated by the Sales Tax Officer when directing reopening of assessment for escapement or under-assessment? 2.. Whether assessment which had got merged with the appellate order, was available to be reopened under section 12(8) of the Act?" 3. Background facts are as follows: For the assessment year 1976- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were again nullified in appeal. The Revenue assailed correctness of order relating to assessment year 1976-77 alone. The Tribunal upheld the decision of the Assistant Commissioner. An application for reference was turned down. As indicated above, on being moved, a direction under section 24(2) of the Act was given for stating a case. 4.. Mr. S.K. Patnaik learned counsel for the Revenue, submits that while the appeals were originally disposed of by the first appellate authority, it did not take note of subsequent decision of the Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212 and therefore, the assessing officer was justified in reopening the assessment. It is stated that the language used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, in addition to the tax assessed under this sub-section, a sum not exceeding one and a half times of the said tax so assessed." It is no doubt true that the expression used in section 12(8) of the Act is "any reason". But that certainly cannot be construed to mean "no reason". While directing initiation of a proceeding assessment under section 12(8) of the Act, the Sales Tax Officer has to indicate as to why such action was necessary. He must at least indicate as to what is the basis for his prima facie conclusion that there has been escapement of assessment or under-assessment. The exercise cannot be result of any whim depending on the ipse dixit of the assessing officer. A completed assessment is intended to be reopened on the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as escapement of assessment or underassessment. The order dated March 28, 1980 pursuant to which notice in form VI was issued has been extracted above. The notice is apparently vague. It is a notice under sections 11(1), 12(5) and 12(8) of the Act. A proposed action cannot be both under section 12(5) and 12(8) of the Act. That also adds to the vulnerability of the proceeding. Our answer to the first question therefore, is that the assessing officer is required to record the basis on which action under section 12(8) of the Act is proposed to be taken. 6.. So far as second question is concerned, the dealer is on terre firma. An assessment order gets merged with the appellate order by operation of the doctrine of merger. The juristic justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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