TMI Blog2011 (1) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... facts are as follows: The sole respondent is an assessee and a registered dealer under the provisions of the Kerala General Sales Tax Act, 1963. The respondent is carrying on business in Jewellery. Section 5 of the Act stipulates levy of tax on every dealer whose total turnover exceeds a particular limit in an year. It further stipulates rate of tax with reference to various categories of dealers and various items of merchandise. Under Sec.5(1)(i), it is stipulated that in the case of goods specified in the First or Second schedule, the dealer is liable to pay tax on 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The revision petitioner accepted the objection of the respondent and dropped the proceedings. However, the revision petitioner initiated fresh proceedings invoking Section 19 of the Act and a notice was issued on 04.02.2006. 8. Section 19 of the Act, in so far as it is relevant for the purpose of the case, reads as follows: "19. Assessment of escaped turnover:-(1) Where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year or has been under assessed at a rate 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-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner in the factual context of the case, is impermissible. We may also mention herein that the learned Counsel argued that the failure on the part of the Department to invoke Section 5D, while making the assessment of the tax liability of the respondent for the period 2001-02, is a contingency falling under second of the above mentioned contingencies which enabled the Department to invoke Sec. 19 of the Act. Assuming for the sake of argument that the language of Section 19 is susceptible to such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the three branches. Initially, the assessing authority accepted such an offer and assessed the liability. With reference to third branch, the assessee filed separate return. The Deputy Commissioner subsequently noticed that such a procedure adopted was not permissible under the Scheme of the Act and therefore initiated proceedings under Section 35 of the Act. It was in the said context, a Division Bench of this Court opined as follows: "In other words, even if there is a mistake 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order or correct mistakes or 'errors apparent' on the face of record. The scope of the jurisdiction, in our view, depends on the language of the provision conferring the jurisdiction and the over all scheme of the enactment under which such a provision is made. For example, Section 114 of the Code of Civil Procedure which confers the jurisdiction on the civil Courts to review its judgments. It does not speak of any error or mistake. On the other hand, Order 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 obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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