KARNATAKA TRADING CO Vs. COMMERCIAL TAX OFFICER II CIRCLE

JUDGEMENT

(1.) The petitioner is a dealer carrying on business in coriander among other commodities. For the year ended 31-3-1964 the petitioner's turnover in respect of coriander was Rs.1,69,074-79. The Commercial Tax Officer who is the respondent, by his assessment order dated 16-3-1965 exempted the aforesaid turnover from tax holding that coriander falls within the meaning of the term 'other oil seeds' under S.5(4) read with Entry No.5 (d) of the IV Schedule of the Mysore Sales Tax Act, 1957. On 22-3-1969 the respondent issued to the petitioner a notice under S.12(A) of the Mysore Sales Tax Act proposing to bring to assessment the aforesaid turnover relating to coriander which had been exempted earlier. It is stated in the notice that according to the expert opinion of the Head of the Genetics Division, IARL, New Delhi, so far as this country is concerned, the major use of coriander is as a spice and condiment and it should not be classified as an oil seed and in the light of the said expert opinion, the exemption allowed earlier was incorrect.

(2.) The petitioner has challenged the said notice on two grounds. First that coriander falls within the meaning of the term 'other oil seeds' under the Act. Secondly, that the disputed turnover in question was expressly exempted from tax under the original assessment order and that when the said turnover was before the assessing authority and exempted by him, it cannot be contended that the said turnover is an escaped turnover to tax. Since we are in agreement with the second ground urged by the learned Counsel for the petitioner, it is unnecessary for us to express any opinion on the first ground.

(3.) In STRP. Nos.30, 31 & 32 of 1968, (1970) 2 MysL.J. 386 we have held that where a particular turnover is before the assessing authority and that turnover is exempyed by him, the same turnover cannot be brought to assessment under S.12A of the Act as the turnover cannot be said to have escaped assessment. We relied on the decision in State of Kerala v. Appukutty, 14 STC 242. In Deputy Commr. of Agrl. Income Tax and Sale Tax v. Dhanalakshmi Vilas Cashew Co., 24 STC. 491, the Supreme Court has held that where a particular income was before the Agricultural Income Tax Officer and the same was exempted, the provision for assessing escaped income cannot be invoked for bringing such income to tax. The said decision has been applied to a sales tax case in State of Kerala v. K.E.Nainan, 24 STC. Sh. No.2, decided by the Supreme Court. The above decisions of the Supreme Court fully support our view expressed in STRP.Nos.30, 31 and 32 of 1968. Therefore under S.12(A) the respondent has no jurisdiction to assess the turnover exempted earlier. In the result, this writ petition succeeds and the impugned notice dated 22-3-1969 is quashed. No costs.