TaxTMI 
TaxTMI 
1985 (2) TMI 247
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....er of assessment, the petitioner-assessee preferred an appeal to the Assistant Commissioner under section 19 of the abovementioned Act. That appeal was partly allowed by the appellate authority and assessment was confined by the appellate authority to a turnover of Rs. 2,56,210. Long prior to the order of assessment made on 25th March, 1976, the record slips and other materials in possession of Jayalakshmi Rice Mill which is a third party to these proceedings were inspected by the assessing authority. But the material which those books furnished was not taken note of by the assessing authority in making the order of assessment on 25th March, 1976. However, on 20th March, 1979, i.e., about two years after the Assistant Commissioner had al....
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....note that rule 31 is a rule made under section 39 of the Act. Section 39 empowers the State Government to make rules by notification for the purposes of the Act. Now, rule 31(1), in material portion, may be read. It runs as follows: "31. (1) If for any reason the whole or any part of the turnover of business of a dealer....................has escaped assessment to tax...........the assessing authority...................subject to the provisions of sub-rule (6), may,................ determine to the best of his judgment the correct turnover, and assess the tax payable on such turnover.............after issuing a notice to the dealer............. and after making such inquiry as he considers necessary." A plain reading of the lan....
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....ct to the turnover referred to in sub-rule (1) of rule 31, and as that turnover was already made subject to an appellate order passed by the Assistant Commissioner on 31st January, 1977, the assessing authority can only report to the Assistant Commissioner the fact of escaped turnover without himself being competent to reassess the escaped turnover. This argument has to be examined in the light of the language which has been used both in sub-rule (1) and sub-rule (6) of rule 31. But, above all, this argument has to be examined keeping in view the fact that these rules are made under section 39 of the Act to give effect to the purpose of the Act. We have already noted that section 14(4) of the Act provides for the reassessment to be made ....
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....appellate provisions of section 19 or the revisional powers of section 20 in the Act, the assessing authority shall not reassess in exercise of his powers under sub-rule (1) of rule 31. Sub-rule (6), in such a situation, requires the assessing authority to make a report to the appropriate appellate or revising authority pointing out the fact of escaped turnover. The argument of the learned counsel for the petitioner is that his turnover has already been passed upon by the Assistant Commissioner under section 19 of the Act on 31st January, 1977. Therefore, the provisions of sub-rule (6) of rule 31 are attractive to the facts of this case debarring the assessing authority from exercising its powers of reassessment under rule 31. According ....
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....er was assessed by the appellate authority, the remaining turnover which was never brought to assessment and had never fallen for consideration of the appellate authority can rightly be described as turnover that has escaped assessment. The use of the words "any part" in contradistinction to the words "the whole" occurring in sub-rule (1) of rule 31 makes this meaning clear. This means denial of immunity from reassessment at the hands of the assessing authority on the ground that the part of the turnover had already been assessed by the appellate authority. What then is the scope of sub-rule (6) of rule 31? The real scope of sub-rule (6) of rule 31 is to give finality to the appellate orders. This finality is sought to be ensured not by den....
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....g power. No doubt, there is a general view prevalent that the Tribunal created under a statute cannot go into the validity of the provisions of the statute, but to what degree and to what extent this negative postulate would apply and what positively the Tribunal should do in a case like this is not at all made clear. We are assuming for the purpose of this case that our powers are the same as that of the Tribunal. But is then the Tribunal debarred from making a choice between giving effect to sub-rule (6) denying jurisdiction of reassessment to the assessing authority which was clearly averred under section 14(4) or ignoring sub-rule (6) and giving effect to the provisions of the statute under which sub-rule (6) was enacted. No decision ha....