TMI Blog2017 (9) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest of the Revenue, and he forms such opinion on enquiry being made. If that is the factual position, then, obviously, the first respondent cannot exercise the powers, what could not have been done by the Assessing Officer, as the statement was recorded much after the assessments were completed, and the same are clearly barred by limitation, as it is beyond the period of five years. The power under Section 16(1) is wide enough and cannot be said to be limited to assessment of assessable turnover under that sub-section by the Assessing Authority only. It is to be invoked in all cases, where, a statutory functionary under the Act assumes jurisdiction to assess the escaped turnover. Therefore, it was held that, in passing an original order of assessment, the Board exceeded its powers under Section 34, and that the order was also passed beyond time. Therefore, the order was held to be unenforceable in law. The material sought to be relied upon was available with the Assessing Officer for the relevant assessment year. As noticed, the Assessing Officer himself, in the subsequent assessment orders has referred to the very same materials, which are contained in the earlier not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Hence, the first respondent proposed to re-determine the total and taxable turnover for the relevant years and also proposed to impose penalty under Section 12 (3) (b) of TNGST Act and Section 10 (3) of TNGST Act. 4. On a prima facie reading of the impugned notices, one gets an impression that, they are notices issued under Section 16 of TNGST Act, which deals with the assessment of escaped turnover. However, on careful reading of the same, it is seen that the impugned notices have been issued by the Deputy Commissioner of Tax (North) Division, exercising his special powers under Section 32 of TNGST Act. 5. The petitioners contention is that, the impugned notices are wholly time barred, vitiated, on account of the total non-application of mind, and are liable to be set aside. Though the learned counsel appearing for the petitioners had referred to a long line of decisions to substantiate their case, it would suffice to refer to the following reported decisions:- i) [A. Velayutha Raja Vs. Board of Revenue (CT)] (1970) 26 STC 176. ii) (Reliance Motor Company Pvt. Ltd., Vs. State of Tamil Nadu) (1992) Vol. 84 STC. 201. and iii) (M/s.P.Narayansamy Vs. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 of the TNGST Act, while purporting to pass orders of assessment could do so, beyond the period of limitation stipulated under Section 16 of the TNGST Act, 1959. At this juncture, it would be useful to refer to Sections 16 and 32 of the TNGST Act, which reads as follows:- a) Section 16 (I) (a) Where, for any reason, the whole or any Assessment part of the turnover of business of a dealer has escaped of escaped assessment to tax, the assessing authority may, subject to the provisions of sub-section (2), at any time within a period of five yews from the expiry of the year to which the tax relates, determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable oil such turnover after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such assessment. 16 (1) (b) Where, for any reason, the whole or any part of the turnovcr of business of a dealer has escaped assessment to tax or has been assessed at a rate lower than the rate at which it is assessable, the assessing authority, may at any time within a period of five years from the (date of order of the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 (6) In computing the period of limitation for assessment or re-assessment under this section, the time during which any appeal or other proceeding in respect of any assessment or re-assessment of the same or part of the turnover made under under any other enactment was pending before the Special Tribunal or the Supreme Court shall be excluded. 16-A. Assessment of turnover not declared under Section 7 (or Section 7-b) (1) Where for any reason, any part of the Assessment turnover of business of a dealer who has been permitted of turnover to pay the tax under section 7 [or section 7-B) has escaped assessment from the tax, the assessing authority may, at any time within a period of five years from the expiry of the year to which the tax relates, determine to the best of its judgment the turnover which has escaped assessment and reassess the tax payable on the total turnover (including the turnover already assessed. (under section 7 or section 7-B. Section 32 1) The Deputy Commissioner may, of his own motion,call for and examine an order passed or proceeding recorded by the appropriate authority '(Section 4-A, [under sub-section (3) of Section 10], Section 12, Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded is prejudicial to the interests of the Revenue, the Deputy Commissioner may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise or modify or set aside such order or proceeding. The power of sub-section (1) of Section 32 shall not be exercised if, i) the time for appeal against the order has not expired; ii) order has been made the subject of an appeal or a revision and iii) more than five years have expired after the passing of the order. Thus, the power under Section 32 is a suo-moto power, to scrutinize the orders of the Assessing Officer, which have been passed under various provisions stated above. 13. Bearing in mind the above two statutory provisions, if we examine the impugned notices, it is seen that the notices issued to the petitioners contain seven pages, which are common to all the petitioners. In fact, these seven pages appear to be photo stat copies, which are commonly prepared and the name of the dealer has been filled up in hand at the appropriate place. Thus, the entire purpose behind issuing impugned notices is to re-open the concluded assessment. The averments set out in the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unctionary under the Act assumes jurisdiction to assess the escaped turnover. Therefore, it was held that, in passing an original order of assessment, the Board exceeded its powers under Section 34, and that the order was also passed beyond time. Therefore, the order was held to be unenforceable in law. 16. Following the decision rendered in the case of A.Velayutha Raja (cited supra), the Hon'ble Division Bench, in the case of Reliance Motor Company Private Limited (cited supra), while examining the power of the Joint Commissioner under Section 34 of the TNGST Act to bring the escaped turnover to tax, when it was neither a subject matter of assessment proceedings nor appellate proceedings, it was held that, 'even if the Joint Commissioner could otherwise have brought the escaped turnover to tax for the first time, since the notice issued by him was beyond the period of limitation prescribed under Section 16 (1) of the Act, the order passed by him was without jurisdiction'. 17. In the case of (M.M.Mohideen Thamby Co. Vs. The Deputy Commissioner) reported in (1996) STC Mad 87, it was contended that the Deputy Commissioner has no jurisdiction to enhance the turnove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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