TMI Blog2021 (7) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the rate of 4% and 5% on certain items i.e., telephone instrument and at the rate of 14% on networking instruments, whereas, the networking equipments are taxable under Entry 4 of Part E of 2nd Schedule to the Act at the rate of 12% for the month of April and May and for a period of 13% from June to March. Thus, the condition precedent for invocation of power under Section 12A of the Act has been fulfilled. The Assessing Authority while passing an order of re-assessment has granted concession to the petitioner in the rate of tax. It is evident that on initiation of the re assessment, the assessment proceedings are re-opened and initial order of assessment does not survive and the effect of re-opening of the assessment is to vacate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner is a Multi National Company, which deals in the business of Information Technology Products, their manufacturing services and sales. During the Assessment Years 2003-04 and 2004 05, M/s 3D Network Pvt. Ltd. Was engaged in trading of telephones and parts and accessories of telephones, computers, computer peripherals such as modem routers and other parts and accessories thereof. An inspection was carried out by the Chief Technology Officer (CTO). Thereafter, the Additional Commissioner of Commercial Taxes issued a proposition notice under Section 12 (3) of the Act in relation to Assessment Years 2003-04 and 2004-05. Thereafter, an order of assessment was passed on 22.01.2008 by which tax liability of the petitioner was incr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner submitted that the finding recorded by the Joint Commissioner of Commercial Taxes as well as by the tribunal that power under Section 12A of the Act can be invoked only for enhancing the tax liability is based on misinterpretation of the language contained in Section 12A of the Act. It is further submitted that power to assess or re-assess includes power to deal with the rate of tax. It is submitted that order passed by the tribunal is cryptic and suffers from the vice of non application of mind inasmuch as no reasons have been assigned for recording the conclusion. In support of aforesaid submissions, reliance has been placed on decision of the Supreme Court in 'COMMISSIONER OF SALES TAX VS. M/S H.M., ESUFALL, H.M.ABD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y may, notwithstanding the fact that the whole or part of such escaped turnover was already before the said authority at the time of the original assessment or re assessment but subject to the provisions of Sub-Section (2), at anytime within a period of eight years from the expiry of the year to which the tax relates, proceed to assess or re-assess to eth best of its judgment the tax payable by the dealer in respect of such turnover after issuing a notice to the dealer and after making such enquiry as it may consider necessary. (1-A) In making an assessment under Sub-Section (1() the Assessing Authority may, if it is satisfied that the escape from assessment is due to willful non-disclosure of assessable turnover by the dealer, direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... une to March. Thus, the condition precedent for invocation of power under Section 12A of the Act has been fulfilled. The Assessing Authority while passing an order of re-assessment has granted concession to the petitioner in the rate of tax. 9. The Supreme Court while dealing with the scope of proceeding of re-assessment in the context of MADHYA PRADESH GENERAL SALES TAX ACT, 1958 in 'COMMISSIONER OF SALES TAX VS. M/S H.M. ESUFALL, H.M. ABDUL ALI, AIR 1973 SC 2266 in para 17, has held as under: What is true of the assessment must also be true of re-assessment because re assessment is nothing but a fresh assessment. When re-assessment is made under Section 19 , the former assessment is completely reopened and in its place fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle should apply even to a case like the present one where an application for rectification is filed after the completion of the re-assessment proceedings. 11. Similarly, the division bench of this court in 'GIRIDHARLAL PARASMAL VS. THE STATE OF MYSORE, STRP NO.34/1966 DATED 24.02.1967 , in para 7 has held as under: When the facts are not disputed and the law is so clear, we fail to understand how the Assessing Authorities could at all impose tax. We are clearly of the opinion that the duty of the assessing officers is not merely to impose tax that is lawfully exigible but also to give to the assessees the benefit of any reduction or exemption that may become due to them upon facts actually found to be true by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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