TaxTMI 
TaxTMI 
2002 (10) TMI 757
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....under section 19 of the Act in respect of three assessment years 1989-90, 1990-91 and 1991-92, inter alia, stating that during the assessment year 1989-90 the petitioner had purchased goods for Rs. 3,35,125.80, that the petitioner had conceded only a sales turnover of Rs. 2,34,200 that generally in bar attached hotels the sales turnover under restaurant section must be at least 1½ times of the purchase value of goods used for the preparation of cooked food which is an acceptable norm in the line of business and that the turnover disclosed is nearly 70 per cent of the cost of goods only which is not acceptable. It is therefore stated in the notice that the turnover should have been fixed at Rs. 5,02,689 as against the conceded turnover of Rs. 2,34,200 and therefore it is clear that there is an escapement of turnover to the extent of Rs. 2,68,220 which has resulted in a short levy of sales tax, additional sales tax and surcharge Rs. 35,688. The petitioner filed his reply dated March 21, 1995 (exhibit P3). The petitioner had also raised an additional objection in respect of the assessment year 1989-90 that the reassessment is barred by limitation. According to the petitioner, t....
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....of the Act. He also submits that even if such a power is to be invoked, it can only be subject to the other provisions of the Act, in this case within the time provided for making reassessment under section 19 of the Act. The counsel in support of the said contention has relied on the decision of the Supreme Court in State of Kerala v. K.M. Cheria Abdulla and Company [1965] 16 STC 875 and the decision of the Karnataka High Court in Bidar Sahakar Sakkar Karkhane Ltd. v. State of Karnataka [1985] 58 STC 65 besides other decisions. 5.. The learned Government Pleader appearing for the respondents submitted that the power of the assessing authority under section 19 of the Act and of the Deputy Commissioner under section 35 of the Act are totally different powers, which are mutually exclusive also. He also submits that the Deputy Commissioner is entitled to invoke the supervisory power conferred under section 35 of the Act even to rope in escaped turnover provided the conditions specified in section 35, viz., that the order is vitiated by illegality, irregularity or impropriety are made out. He further submitted that the bar of limitation provided under section 19 of the Act cannot ha....
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....ection 35 of the Act is to be used only to correct the illegality, irregularity or impropriety of the order sought to be revised and is not to be used in another field of jurisdiction, viz., the jurisdiction of the Sales Tax Officer to assess the escaped turnover under section 19 of the Act. 7.. The division Bench relied on the decisions of the Supreme Court in State of Kerala v. M. Appukkutty [1963] 14 STC 242, State of Kerala v. K.M. Cheria Abdulla and Company [1965] 16 STC 875, Swastik Oil Mills Ltd. v. H.B. Munshi, Deptuy Commissioner of Sales Tax [1968] 21 STC 383, Deputy Commissioner of Agricultural Incometax and Sales Tax v. Dhanalakshmi Vilas Cashew Co. [1969] 24 STC 491 and in State of Kerala v. K.E. Nainan [1970] 26 STC 251 and held that ".................the revisional power of the Deputy Commissioner is separate and distinct power; an independent jurisdiction; and that the two powers operate in two fields, so that they cannot overlap and the revisional power of the Deputy Commissioner cannot trench upon the power of the sales tax officer to assess escaped turnover. If it does, it oversteps its field and is thus beyond the Deputy Commissioner' s jurisdiction". Anot....
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....sions considered by the earlier two division Benches as also the other decisions of the other courts and held in paragraph 17 of the judgment as follows: "17. We began the discussion of the question by recording our first impression on the statutory provision. The power of assessing escaped turnover and of revision are two distinct and separate powers. They have been conferred on two different authorities under sections 19 and 35, the latter power being conferred on a superior authority. An examination of the authorities has only confirmed our first impression." 8.. Thus the decision of the Full Bench is to the effect that there is no bar or inhibition against getting at escaped income in exercise of the revisional power, so long as the grounds for exercise of that power are made out, viz., that the order is vitiated by illegality, irregularity or impropriety. 9.. The Supreme Court in Bombay Ammonia Pvt. Ltd. v. State of Tamil Nadu [1976] 37 STC 517 held as follows: "In view of the above, we are of the opinion that the suo motu power of revision of the Deputy Commissioner is of wide amplitude and can be exercised in favour of the revenue as well as the taxp....