Case: Hind Wire Industries Vs. Commissioner Of Income Tax

all that the assessee need do to escape reassessment is to refuse to file a return or refuse to produce taken on behalf of the assessee is correct, the assessee can escape his liability to be reassessed by adopting an obstructive attitude. It is difficult to conceive that such could be the position in law." * 11. The Court while dealing with the provisions of the M.P. General Sales Tax Act, 1958 quoted Section 19 and Rules 33(1) and (2) which read as under : "19. Assessment of turnover escaping assessment. - (1) Whereas an assessment has been made under the Act repealed by section 52 and if for any reasons any sale or purchase of goods chargeable to tax under this Act or any Act repealed by section 52 during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess within a period of two calendar years from the commencement of such proceedings, the tax payable by such dealer and the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount :Provided that in the case of an assessment made under any Act repealed by section 52, the period for reassessment escapement or wrong deduction shall be provided in such Act notwithstanding the repeal thereof :Provided further that any reassessment proceedings pending on the date of commencement of the Madhya Pradesh General Sales Tax (Amendment) Act, 1978 (No. 25 of 1978) be completed in accordance with the provisions in force before the date of such commencement and within a period of two calendar years from the date of such commencement." * x x x x x "33. Manner of assessment and reassessment and imposition of penalty. - (1) Where, -(a) a registered dealer has rendered himself liable to tax and penalty under sub-section (1) of section 14A, or(a-i) a dealer has failed to comply with a notice issued under sub-section (1) of section 17, or(b) a registered dealer has failed without sufficient cause to furnish prescribed returns for any period by the prescribed date as required by sub-section (1) of section 17, or(c) a registered dealer has rendered himself liable to best judgment assessment under clauses (a) and (b) of sub-section (4) of section 18, or(d) a dealer has rendered himself liable to best judgment assessment under sub-section (6) or sub-section (7) of section 18, or(e) a dealer being liable to pay tax, has wilfully failed to apply for registration, or(f) the sale or purchase of goods by a dealer during any period has been under-assessed or has escaped assessment or has been assessed at a lower rate or any deduction has been wrongly made therefrom within the meaning of sub-section (1) of section 19, or(g) a dealer has deliberately concealed his turnover of sale or purchase in respect of any goods or has furnished a false return, then in every such case, the assessing authority shall serve on the dealer a notice which shall as far as may be, be in Form XVI specifying the default, escapement or concealment, as the case may be, and calling upon him to show cause by such date, ordinarily not less than 30 days from the date of service of the notice as may be fixed in that behalf, why he should not be assessed or reassessed to tax and/or penalty should not be imposed upon him and directing him to produce on the sale date his books or account and other documents which the assessing authority may require and any evidence which he may wish to produce in support of his objection :Provided that no such notice shall be necessary where the dealer, having appeared before the assessing authority, waives such notice.(2) On the date fixed in the notice issued under sub-rule (1) or in case the notice is waived on such date which may be fixed in this behalf the assessing authority shall after considering the objections raised by the dealer and examining such evidence as may be produced by him and after taking such other evidence as may be available, assess or reassess the dealer to tax and/or impose a penalty or pass any other suitable order." 12. In view of these authorities taking the view that the word any in the expression "order sought to be amended" would mean even the rectified order, we are satisfied that the High Court was wrong in setting aside the decision of the Tribunal. Shri G. Vishwanatha Iyer, learned Senior Counsel cited before us the decisions of the Calcutta, Gujarat, Madras and Orissa High Courts in Bharat Textile Works & Ors. v. Income Tax Officer, Circle-IV, 3-A, (Company) [ 1978 (114) ITR 28 ] Ahmedabad Sarangpur Mills Co. Ltd. v. A. S. Manohar, Income Tax Officer, Circle IV, Ward-A, (Companies), Ahmedabad [ 1976 (102) ITR 712 ], Kothari (Madras) Ltd. v. Agricultural Income Tax Officer [ 1989 (177) ITR 538] and Commissioner of Income Tax v. Kalinga Tubues [ 1991 (187) ITR 595] respectively in support of his contention that the word order used in the expression "order sought to be amended" would mean the original order of the assessment. As against this, Dr. Shankar Ghose, learned Senior Counsel, referred us to the decisions of the Patna and Karnataka High Courts in Bihar State Road Transport Corporation v. Commissioner of Income Tax [ 1986 ITR 162 114 at 130] and Commissioner of Income Tax, Karnataka-II, Bangalore v. Mysore Iron & Steel Ltd. 1986 (157) ITR(at) 531] respectively which decisions have taken the contrary view.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. In view of these authorities taking the view that the word any in the expression "order sought to be amended" would mean even the rectified order, we are satisfied that the High Court was wrong in setting aside the decision of the Tribunal. Shri G. Vishwanatha Iyer, learned Senior Counsel cited before us the decisions of the Calcutta, Gujarat, Madras and Orissa High Courts in Bharat Textile Works & Ors. v. Income Tax Officer, Circle-IV, 3-A, (Company) [ 1978 (114) ITR 28 ] Ahmedabad Sarangpur Mills Co. Ltd. v. A. S. Manohar, Income Tax Officer, Circle IV, Ward-A, (Companies), Ahmedabad [ 1976 (102) ITR 712 ], Kothari (Madras) Ltd. v. Agricultural Income Tax Officer [ 1989 (177) ITR 538] and Commissioner of Income Tax v. Kalinga Tubues [ 1991 (187) ITR 595] respectively in support of his contention that the word order used in the expression "order sought to be amended" would mean the original order of the assessment. As against this, Dr. Shankar Ghose, learned Senior Counsel, referred us to the decisions of the Patna and Karnataka High Courts in Bihar State Road Transport Corporation v. Commissioner of Income Tax [ 1986 ITR 162 114 at 130] and Commissioner of Income Tax, Karnataka-II, Bangalore v. Mysore Iron & Steel Ltd. 1986 (157) ITR(at) 531] respectively which decisions have taken the contrary view.