TMI Blog2023 (2) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 16(1)(a) and 16(1)(b) as well as the various interpretations of the Courts, making it clear that Section 16(1) (a) deals with assessment of escaped turnover, whereas Section 16(1)(b) deals with re-assessment of the turnover not only escaped assessment, but also improperly assessed. In case of assessment on escaped turnover in exercise of power under Section 16(1)(a), reflection of the original order of assessment is not required even if the authority chooses to pass a composite order by including the assessment year relating to escaped turnover. If the tax liability already determined in the original assessment proceedings, it can be bodily lifted and added to the order under Section 16(1)(a) of the Act. Admittedly, the right to challenge the disallowance of exemption has not been availed. When the appeal preferred and remedy exhausted against the original order, it will be preposterous to confer the said right in the subsequent assessment on the escaped turnover alone, only because the subsequent order passed under Section 16(1)(a) of the said Act has also incorporated the earlier assessment order, merely for the sake of completeness. Unless the entire turnover is re-asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rs.1,41,11,136/- from tax, it being purchase of raw skins for export after process also challenged. 3. The Appellate Authority partly allowed the appeal taking into consideration the documents produced to claim exemption. A sum of Rs.1,34,52,521/- as against the claim of exemption of Rs.1,41,11,136/- was exempted from tax. The claim of exemption of the premium received for transfer of licence disallowed. No further appeal filed by the assessee against the disallowed portion. However, the Joint Commissioner suo motu has taken up the order of the Appellate Authority for revision in exercise of the power conferred under Section 34 of the TNGST Act. Show cause notice was issued to the assessee why the revised assessment order granting exemption to the tune of Rs.1,34,52,521/- should not be set aside, since the same was not challenged at the first instance when assessed to tax, vide assessment order dated 15.11.1989. 4. After issuing show cause notice and affording opportunity, the Joint Commissioner, vide his proceedings dated 28.09.2000, held that the revised assessment order granting exemption of sales to the tune of Rs.1,34,52,521/- is incorrect and therefore, set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 302/- was assessed to tax at the rate of 5%. While doing so, the taxable turnover of the year 1988-1989 at different rate has been assessed. Against the disallowed portion, appeal was filed before the appellate authority, who in his wisdom, has thought fit to grant exemption towards the value of the proceeds, purchase of raw skins from local source used on export sale, which according to him, runs to the tune of Rs.1,34,52,521/-. 9. This appeal is by the dealer, challenging the tax on his turnover to the tune of Rs.1,44,04,414/-. This was not the subject matter of the revised assessment order dated 31.03.1995. It was only in respect of escaped turnover in connection with transfer of REP licence. Though it was originally not liable for levying tax, after the judicial pronouncement, it was considered as taxable turnover. In the said circumstances, the modified order by the appellate authority based on the assessment already reached finality has been suo motu reopened by the Joint Commissioner in exercise of his power under Section 34 of the said Act. While upholding that the modified order of the Appellate Authority on a matter already settled and not challenged earlier, the Joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of the Act had set aside the original orders of assessment, which were not even under consideration referred to or included in the order under section 16(1)(a) of the Act. The order of refund of tax, already paid on the basis of the original order of assessment is, therefore, erroneous and cannot be sustained. The learned single Judge did not advert to, much less consider and discuss the facts and circumstances of this case while ordering the writ petitions and for what we have said above, we cannot agree with the judgment of the learned single Judge in the three writ petitions. Consequently, these judgments are set aside and the writ petitions filed by the respondent-assessee would stand dismissed. In the result, the writ appeals succeed and are allowed. No costs.'' 12. The said observation has been made after considering the tenor of the re-assessment order passed under Section 16 of the Act. In the said case, the Division Bench has taken note of the language used in Section 16(1)(a) and 16(1)(b) as well as the various interpretations of the Courts, making it clear that Section 16(1) (a) deals with assessment of escaped turnover, whereas Section 16(1)(b) deals wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made very clear by the Division Bench in Ekambareeswarar Coffee and Tea Works case [cited supra] in the following words:- ''6. A mere glance at section 16(1)(a) shows that it empowers an assessing authority subject to the provisions of sub-section (2), at any time within a period of five years from the expiry of the year to which the tax relates, to determine to the best of its judgment the turnover which had escaped assessment and assess the tax payable on such turnover after making such enquiry as may be considered necessary and after giving the assessee a reasonable opportunity to show cause against such assessment. The power which the assessing authority thus exercises under Section 16(1)(a) of the Act is neither the power of revision nor the power of review. The power is exercised by the assessing authority in his original jurisdiction and relates to assessment in regard to the escaped turnover. The use of the expression determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover makes it abundantly clear that the jurisdiction under section 16(1)(a) of the Act is limited to determining, to the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
