TaxTMI 
TaxTMI 
2017 (9) TMI 946
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....ainless steel sheets and coils from various dealers, that one S.Mahendra Kumar Jain, the Proprietor of M/s. Aashana Enterprises, the Power-of-Attorney Holder of M/s.Kamelesh Enterprises, and Director of M/s. Shreyanash Ispat Chennai, Pvt. Ltd., in his statement, dated 20.08.2003, given before the Deputy Commercial Tax Officer, Group IV, Central Enforcement Wing-I, Chennai, has stated that, he has given only sales bills and the goods were not moved against the bills raised. Therefore, the first respondent proposed that the exemption claimed by the petitioners on the strength of the purchases effected by M/s. Aashana Enterprises and M/s.Kamelesh Enterprises that it had suffered tax at a earlier stage, is not in order and not eligible for exemption. The first respondent further stated that the petitioners have produced fabricated bills, in order to claim exemption and evade tax, both on purchases and sales, and therefore, the exemption claims have to be rejected. 3. After referring to certain case laws, the first respondent referred to Section 10 of the Tamil Nadu General Sales Tax Act, 1959 (henceforth, referred to as 'TNGST Act'), and stated that the petitioners failed to....
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....yond the period of limitation prescribed under Section 16 of the TNGST Act, as he proposes to exercise the power of the Assessing Officer, and what the Assessing Officer could not have done beyond the period of limitation fixed under Section 16 of the TNGST Act, the Deputy Commissioner (CT) cannot do, in exercise of powers under Section 32 of the TNGST Act. 8. The learned Additional Government Pleader for respondents seek to sustain the impugned notices, by referring to the averments made in the impugned notices and would submit that the dealers have failed to prove the anterior real value of the goods, and therefore, the first respondent rightly treated the same as first sales liable to be taxed under the TNGST Act. It is further submitted that, the impugned proceedings are only notices, and the petitioners should be directed to submit their objections to the impugned notices and the first respondent should be left to take a decision on merits and in accordance with law. 9. Heard Mr. T.Pramod Kumar Chopda, the learned counsel for the petitioners and Mr.S.Kanmani Annamalai, the learned Additional Government Pleader for respondents and perused the materials placed on record. ....
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....ly not disclosed, if the tax due on such turnover is more than fifty percent of the tax paid as per the return. (d) one hundred and fifty per cent of the tax due on the assessable turnover that was wilfully not disclosed, in the case of self-assessment referred to in sub-section 1 of section 12. Provided that no penalty under sub-section shall be imposed unless the dealer affected has had a reasonable opportunity of showing cause against such imposition. 16 (3) The powers under sub-section (1) may be exercised by the assessing authority even though the original order of assessment, if any, passed in the matter has been the subject-matter of an appeal or revision. 16 (4) In computing the period of limitation for assessment or re-assessment under this section the time during which the proceedings for assessment or re-assessment remained stayed under the orders of Civil Court or other competent authority shall be excluded. 16 (5) In computing the period of limitation for assessment or re-assessment under this section, the time during which any appeal or other proceeding in respect of any other assessment or re-assessment is pending before the Special Tribunal or the Sup....
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....y Commissioner remained stayed under the orders of a Civil Court or other competent authority shall be excluded.]" 11. Section 16 of the TNGST Act has been enacted to bring to tax any turnover, which escaped assessment in original proceedings and also in cases, where, any lower rate of tax than what is legally applicable had been adopted in the assessment. Thus, power under Section 16 has to be exercised for bringing to tax, the turnover, which have not been subjected to tax earlier, i.e., escaped assessment or had been under assessed by levying lower rate of tax, and this power is not a power to revise or review the turnover on change of opinion. The power can be exercised by the Assessing Officer at any time within a period of five years from the expiry of the year, to which the tax relates. Therefore, this power cannot be exercised by the Assessing Officer endlessly, but within the timeline prescribed under Section 16 of the Act. 12. Section 32 of the TNGST Act confers special power on the Deputy Commissioner, who, on his own motion, call for and examine an order passed or proceedings recorded by the appropriate Authority under Section 4-A, Sub-Section (3) of Section 10, S....
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.... limitation, as it is beyond the period of five years. At this juncture, it is relevant to note that, the Hon'ble Division Bench, in the case of A.Velayutha Raja (cited supra) has pointed out that the revisional powers exercised by the Board of Revenue under Section 34 of the Madras General Sales Tax Act, 1959, are subject to the other provisions of the Act, and therefore, a best Judgment assessment or an original assessment by the Board under Section 34 on the ground of escapement of turn over is bad in law and unsustainable. It is not a mere subjective satisfaction that is envisaged in Section 34, but, it should stand the test of objectiveness as also prescribed guidelines set in the section itself, and it should be in accord with the other provisions of the Act. It was further pointed out in the said case that the provisions as to the period of limitation, within which, escaped turnover can be brought to tax as provided in Section 16(1) equally apply, when such an order is sought to be passed by the Board in exercise of its powers under Section 34. 15. The power under Section 16(1) is wide enough and cannot be said to be limited to assessment of assessable turnover under ....