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TMI Blog2011 (1) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... the total turnover at the rates specified in the corresponding schedule against the goods and to be collected at the points specified in the schedule. The respondent admittedly is liable to be assessed in accordance with Section 5(1) of the Act read with Entry 75 of First Schedule of the Act. 3. Section 5D of the Act, prescribes the Levy of Additional Sales Tax, the relevant portion of which is extracted below: "5D. Levy of Additional Sales Tax: The tax payable under Section 5 and Section 5A shall be increased by an additional sales tax at the rate of fifteen per cent of the tax payable under the said sections. ...." 4. However under Section 7 of the Act, dealers in gold or silver ornaments or wares are given option to be taxed in accordance with the said sub section instead of going through the normal process of assessment prescribed under the Act. Section 7, (in so far as it is relevant for the purpose of the case) is extracted below: "7. Payment of tax at compounded rates: - (1) Notwithstanding anything contained in sub-section (1) of Section 5, (a) any dealer in gold or silver ornaments or wares, may, at his option instead of paying tax in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower than the rate at which it is assessable or any deduction has been wrongly made therefrom, the assessing authority may, at any time within five years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgement the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction that has been wrongly made and assess the tax payable on such turnover after issuing a notice on the dealer and after making such enquiry as it may consider necessary. Provided that before making an assessment under this sub-section the dealer shall be given a reasonable opportunity of being heard." 9. The respondent contested the legality of the proceedings under Section 19. But by order dated 18.02.2006, the revision petitioner determined that the respondent is liable to pay additional tax under Section 5D. Aggrieved by the same, the respondent carried the matter in appeal before the Deputy Commissioner which was dismissed by order dated 20.05.2006. The respondent carried the matter in a further appeal before the Tribunal. Initially, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h an interpretation, the interpretation such as one placed by the Tribunal, in our opinion, cannot be said to be wholly unreasonable or perverse. The well established principle in tax law is that where the statute is susceptible of two interpretations, an interpretation which is favourable to the tax payer is to be preferred, unless there are other compelling reasons to avoid such a preference. In the facts and circumstances of the case and in view of the language of Section 19, we do not see any reason to depart from the normal rule of the interpretation of tax law. 13. The second submission is that the Tribunal ought not to have entertained the application under Section 43 of the Act as the exercise such as the one undertaken by the Tribunal (vide order under Revision), is one which falls squarely within the scope of 'review' under Section 39(7) of the Act. We reject the submission. It is already noticed that Section 39(7)* authorises review of any order passed by the appellate Tribunal only on the basis of discovery of new and important facts. In the instant case, the respondent did not seek review of the earlier order of the Tribunal on the basis of 'discovery of any ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or omission in the approval granted by the assessing officer, it is within his powers to modify such order and demand the tax escaped under the compounding scheme in regular assessment or later by revising assessment under Section 19(1). The power of the Deputy Commissioner under Section 35, of course, can be exercised in respect of any order passed by the assessing officer which is prejudicial to the interest of the revenue." We are of the opinion that the reliance placed on the said decision is wholly misplaced. First of all the scheme and language of Section 19 has not been the subject matter of discussion in the said judgment. Secondly, the issue before the Bench was with regard to the scope of power of the Deputy Commissioner under section 35 of the Act. Therefore, we are of the opinion that the said decision does not in any way advance the case of the revision petitioner. 15. Coming to the second decision [2007] 10 VST 751 (SC) (Deva Metal Powders Pvt. Ltd vs. Commissioner, Trade Tax, U.P.) a matter arose under the Uttar Pradesh Sales Tax Act, 1948. Section 22 of the said Act, authorises rectification of the mistakes. The relevant portion of the Section read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er XLVII Rule 1 C.P.C. Provides as follows: "1. Application for review of judgment - (1) Any person considering himself aggrieved - (a) by a decree or order, from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order, from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at all the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order". In our view, the expression "or for any other sufficient reason" is important and indicates that the power of review is not confined only to the errors apparent on the face of the record. But in a case like the present one where the power to review is limited only to the cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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