TaxTMI 
TaxTMI 
1993 (9) TMI 329
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.... sold under a brand name and it was taxable at 8 per cent single point under item 103 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, (hereinafter called "the Act"). Since the dealer did not file objections the proposal was confirmed and the turnover of Rs. 45,773 was taxed at 8 per cent single point. The assessee filed an appeal contending that "nannari" syrup could be classified only as a soft drinks falling under item 91 of the First Schedule to the Act taxable at 5 per cent single point. However the assessee changed his stand and filed additional grounds contending that "nannari" syrup was a product of sugar mixed with essence of nannari and hence taxable only as multi-point item under section 3(1) of the Act. The a....
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....nary issue that the Joint Commissioner had no power to refix the turnover in the manner in which he has done, by sitting in the arm chair of the assessing officer. The contention is that the scope of section 34 of the Act would not permit the Joint Commissioner to determine the turnover and bring to tax a particular item for the first time which had not originally been taxed by an assessing officer. It is also contended that if the assessing officer could not revise his order dated February 17, 1981 under section 16 of the Act in respect of the assessment year 1976-77 after expiry of the date on March 31, 1982 it follows automatically that the Joint Commissioner cannot also revise the assessment. We could see that the "nannari" syrup manufa....
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....ot so exercise. The power to bring an escaped turnover to tax is the power of an assessing authority under section 16 of the Act. The Joint Commissioner or the Appellate Assistant Commissioner can however get the escaped assessment brought to tax within the period of limitation only." We do not think that the said ratio will apply to the facts of the present case. In this case the Joint Commissioner is certainly not bringing any new turnover to be assessed for the first time. The turnover remains the same and while assessing authority applied entry 103 the Joint Commissioner has sought to apply entry 91. In State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144 (SC) the Board of Revenue exercising suo motu powers sought to include in ....
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.... are not concerned in this case with an escaped turnover. On the other hand in P. Hajee Mohamed D. Saliah & Co. v. State of Tamil Nadu [1983] 54 STC 62 a Division Bench of this Court while dealing with the similar power under section 32 of the Act has laid down as follows: "We are therefore of the view that the expression 'pass such orders as lie thinks fit' will include a power to modify the order of the subordinate authority by refixing the taxable turnover as a result of the cancellation of the exemption granted by the assessing authority." They also pointed out that it is only when an escaped turnover is brought to tax the question of applicability of section 16 and the question of limitation contained therein would apply. We therefor....
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.... it was held that it would not come within the scope of words "non-alcoholic drinks and beverages, bottled or canned and sold under a brand name". The Joint Commissioner has brought the goods within the entry 91 of the First Schedule to the Act. They therefore quoted the entry 91 as it stood at the relevant time. "91. Aerated waters bottled or packed soft drinks sold under a brand name registered under the Trade and Merchandise Marks Act, 1958 (Central Act 43 of 1958), whether or not flavoured or sweetened and whether or not containing vegetable or fruit juices or fruit pulp." The argument of Mrs. Chitra Venkataraman is that "nannari" syrup cannot be consumed as such and can be used only after dilution with water. It was only a sweetening....