Decided on June 26,1967

PHILIPOSE Respondents


- (1.) These Tax Revision Cases by the Sales Tax Department are of the same pattern, and raise a common question, as to the applicability to them, of R.33 of the General Sales Tax Rules, 1950, sub-rule (1) of which is material, and reads as follows: "If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority as the case may be, subject to the provisions of sub-rule (2) may at any time within three years next succeeding that to which the tax or licence fee relates determine to the best of his judgment the turnover which has escaped assessment and assess the tax payable or levy the licence fee in such turnover after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary." In these cases, the concerned assessees submitted returns of their turnover and were assessed by the Sales Tax Officers. The appellate authorities, in one case the Appellate Assistant Commissioner and in the others the Sales Tax Appellate Tribunal, set aside the assessments and remanded the cases to the Sales Tax Officers. Subsequently there have been assessments, but having been made more than three years from the close of the concerned assessment years, the Tribunal held that they were all contrary to R.33 (1) aforesaid. In these revisions before us, the department has challenged the correctness of the view taken by the Tribunal.
(2.) If R.33 (1) applies, the orders of the Tribunal have to stand. But we are clear that it has no application to the assessment) made in the circumstances stated above. R.33 in terms applies only to escaped assessments. Dealing with escaped assessment in income tax law, the Privy Council stated the principle thus, in Rajendra Nath Mukerjee v. Commissioner of Income Tax AIR 1934 P. C. 30 repelling the contention of the appellants: "Assessment, they argue, is a definite Act, indeed the most critical act in the process of taxation. If an assessment is not made on income within the tax year then that income, they submit, has escaped assessment within that year, and can be subsequently assessed, only under S.34 with its time limitation. This involves reading the expression 'has escaped assessment' as equivalent to 'has not been assessed'. Their Lordships cannot assent to this reading. It gives too narrow a meaning to the word 'assessment' and too wide a meaning to the word 'escaped'. Rankin, C. J. in In re Lachhiram Basantlal ILR 58 Calcutta 509 observed as follows: "...... income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessees' income which have not yet terminated in a final assessment thereof." After extracting the above passage, Subba Rao, J. said in Ghanshyamdas v. Regional Assistant Commissioner of Sale Tax, Nagpur 14 S. T. C. 976 at p. 982: "This dictum laid down a clearly understandable principle. How can an escape of a turnover from assessment be predicated before the assessment is completed -
(3.) This is exactly the situation in the cases before us. The assessment proceedings were all commenced by the filing of returns by the assessees, and they would become complete only when the assessments pursuant to them become final. The Supreme Court after referring to Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur 14 S. T. C. 976 stated thus in The State of Punjab v. Tara Chand Lajpat Rai 19 S. T. C. 493 at p. 501: "In the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period though an assessment order is finalised after the expiry of such period. This decision is, therefore, a clear authority for the proposition that assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under S.11 (2) of the present Act, and that if such proceedings are taken within the prescribed time though the assessment is finalised subsequently, even after the expiry of the prescribed period, no question of limitation would arise.";

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