Deputy Commissioner of Agricultural Income Tax and Sales Tax, Quilon vs Philipose Philipose

Velu Pillai, J.—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 Rule 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 or the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the license 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 license fee relates determine to the best of his judgment the turnover which has escaped assessment and assess the tax payable or levy the license 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 Rule 33(1) aforesaid. In these revisions before us, the department has challenged the correctness of the view taken by the Tribunal.

If Rule 33 (I) applies, the orders of the Tribunal have to stand. But we are clear that it has no application to the assessments made in the circumstances stated above. Rule 33 in terms applies only to escaped assessments. Dealing with escaped assessment in income tax law, the Privy Council stated the principle thus, in (1934) 2 ITR 71 (Privy Council) . 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 Ghanshyam Das Vs. Regional Assistant Commissioner of Sales Tax, Nagpur, :

This dictum laid down a clearly understandable principle. How can an escape of a turnover from assessment by predicated before the assessment is completed?

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 assessment pursuant to them become final. The Supreme Court after referring to Ghanshyam Das Vs. Regional Assistant Commissioner of Sales Tax, Nagpur, stated thus in The State of Punjab and Others Vs. Tara Chand Lajpat Rai, :-

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 finalized 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 u/s 11(2) of the present Act, and that if such proceedings are taken within the prescribed time though the assessment is finalized subsequently, even after the expiry of the prescribed period, no question of limitation would arise.

Applying the principles formulated above, it must follow, that the assessment proceedings having not come to a final termination, there could be no question of any escaped assessment, so as to attract the operation of Rule 33. We find, that the same view has been taken by a division bench of this court, in writ appeal 227 of 1964.

Our attention was invited by learned counsel to Misrilal Parasmall v. Sale Tax Officer, Devikulam 1966 KLT 705; but that case was conceded to be one of escaped assessment and is, for that reason, distinguishable in T.R. Cs. 36 and 37 of 1966 now before us. The Tribunal relied on Mathai v State of Kerala 1964 K.L. T. 483. But this was subsequently reviewed and the judgment on review is reported in Deputy Commissioner of Agrl. income tax and Sales Tax, Central Zone, Ernakulam v. Mathai 1966 KLT 512. That was a case of the exercise of the suo motu power of revision u/s 15(1) of the General Sales-Tax Act by the Deputy Commissioner, and for that reason it is unnecessary to examine that decision. As a result, the orders under revision are hereby set aside and the cases are sent back to the Tribunal for disposal on the merits in due course of law. There will be no order as to costs in these revision petitions.