TMI Blog2017 (11) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - petition allowed - decided in favor of petitioner. - W.P.No.9850 of 2007 and M.P.No.2 of 2007 - - - Dated:- 7-11-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. S. N. Kirubanandam For the Respondent : Mr. K. Venkatesh ORDER Heard Mr.S.N.Kirubanandam, learned counsel for the petitioner and Mr.K.Venkatesh, learned Government Advocate appearing for the respondent. 2.The petitioner is aggrieved by the order of assessment passed by the respondent dated 19.01.2007 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, Section 12, 12-A, 14, 15 , or sub-Sections (1) and (2) of Section 16 and if such order or proceedings recorded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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. At this juncture, it is relevant to note that, the Hon'ble Division Bench, in the case of A.Velayutha Raja (cited supra) has pointed out that the revisional powers exercised by the Board of Revenue under Section 34 of the Madras General Sales Tax Act, 1959, are subject to the other provisions of the Act, and therefore, a best Judgment assessment or an original assessment by the Board under Section 34 on the ground of escapement of turn over is bad in law and unsustainable. It is not a mere subjective satisfaction that is envisag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght 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 turnover and the revision was barred by limitation. After taking note of Sections 16 and Section 32 of the TNGST Act, the Hon'ble Division Bench pointed out that, according to Section 16(1)(a), where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... important factor to be noted is that the petitioners' sellers, viz., i) M/s. Aashana Enterprises, ii) M/s.Kamelesh Enterprises, and iii) M/s. Shreyanash Ispat Chennai, Pvt. Ltd. have been assessed to tax for the assessment year, viz., 1998-99 vide the assessment orders, dated 16.02.2000, 14.02.2000 and 27.01.2000, and those assessment orders are intact, and this one more reason to hold that the impugned notices are unsustainable. 20.For the above reasons, it is held that the impugned notices are wholly without jurisdiction. Accordingly, Writ Petition Nos.24437, 26998, 27330 and 27345 of 2004 are allowed and the impugned orders are quashed. II) W.P.No.34269 of 2004 21.Insofar as W.P.No.34269 of 2004 is concerned, the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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