G K CHIKANARASIMHIAH Vs. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES BANGALORE CITY DIVISION

JUDGEMENT

(1.) The petitioners are dealers carrying on business, inter alia, in coriander. Their claim for exemption of their turnover from tax under the Mysore Sales Tax Act, 1957, hereinafter called the "Act" was allowed by the Commercial Tax Officer on the ground that coriander is an "oil-seed" and as such liable to tax only at a single point in the manner provided by sub-section (4) of section 5 read with Schedule IV of the Act. The Commissioner of Commercial Taxes transferred the assessment files to the Assistant Commissioner of Commercial Taxes, the respondent in these writ petitions. The respondent initiated proceedings under section 12-A of the Act read with rule 38 of the Mysore Sales Tax Rules proposing to levy tax on the turnover of coriander under section 5(1) of the Act. The notices in these cases are similar and it is therefore sufficient if we set out one notice in Writ Petition No. 1395 of 1969 marked as exhibit 1. It reads:- <FRM>JUDGEMENT_31_TLKAR0_1970Html1.htm</FRM>

(2.) The petitioners have challenged the notices issued by the respondent on the following grounds : First, section 12-A relates to assessment of escaped turnover and the said section cannot be invoked for assessing the turnover of coriander which had been exempted earlier under the assessment orders. Secondly, coriander comes within the definition of the term "other oil-seeds" mentioned in serial No. 5(d) of Schedule IV of the Act.

(3.) The turnover relating to coriander was before the assessing authority and it was exempted from tax on the view that it is an oil-seed liable to tax under section 5(4) read with serial No.5(d) of Schedule IV of the Act. When the turnover was before the assessing authority and that turnover was specifically exempted from tax, it cannot be said that the said turnover is an escaped turnover. If on a wrong view of the law, the assessing authority has exempted the turnover, that order has to be corrected under section 21 of the Act in exercise of the revisional powers. In the notice issued by the Assistant Commissioner of Commercial Taxes set out above it is stated that the omission from assessment in respect of the turnover of coriander is improper in view of the expert opinion that coriander is a spice. The notice does not state that the turnover is an escaped turnover. If the exemption of the turnover was improper, then the matter is not one for proceeding under section 12-A but under section 21 of the Act as stated earlier. Section 21 empowers the revisional authority to revise the orders passed by subordinate authorities, if on examination of the record, the revisional authority is satisfied that the order of the subordinate authority is not legal or proper. Though the notice issued by the respondent purports to be one under section 12-A read with rule 38, the ground stated in the said notice is one that can be relied on only under section 21 for the purpose of revision. The Assistant Commissioner of Commercial Taxes who has issued the notice has no powers to revise the orders made by the Commercial Tax Officers. He can revise only the orders made by the Assistant Commercial Tax Officers. In the instant case, the assessment orders were made by the Commercial Tax Officer whose orders are not open to revision by the Assistant Commissioner of Commercial Taxes.