(Delivered by Veeraswami, J.)
The assessee, who is the petitioner in each of these cases, included in the taxable turnover for the assessment years 1962—63 and 1963—64 two sums, Rs. 1,07,907-91 and Rs. 1,07,222-67. They were assessed as relating to local sales of spare parts and charged to tax at seven per cent. Within the period of limitation prescribed therefore, the petitioner applied to the assessing authority under Sec. 55 of the Madras General Sales tax Act to rectify the mistake, as it was called, apparent on the face of the record of the two assessments. The applications were dismissed on the ground that there was no such error. The Deputy Commissioner of Commercial Taxes In disposing of a revision arising out of one of the matters declined to interfere stating that this was neither a case of an order, nor a proceeding. The petitions before us have been field under Art. 226 of the Constitution for a direotlon to the assessing authority to delete the two items of turnover both from the re-turns and the assessment order. The evidence relating to the nature of the transactions involved in the two items of turnover is not entirely before us. But the invoices relating to a single transaction in each of the petitions arc relied on for the assessee to show that the transactions covered by the two items of turn-over are of a inter-State character within the purview of S. 3(b) of the General Salestax Act, 1956. The petitioner receives orders from local customers for supply of spare parts and in its turn, places orders with out of State dealers to despatch the goods directly to the place of the petitioner's customer, but the railway receipts are apparently made in the name of the assessee and the same endorsed In favour of the customer before the later takes delivery. If the transaction is as described just now, it will undoubtedly be a second sale, which takes place during the movement of the goods from one State to the other under S. 3 (b) read with the first explanation thereto.
The question, however, is whether if the transaction was of that type which would be exempt from tax under S. 6 (8), the relative documents were produced by the assessee before the assessing authority. There is a statement in the counter affidavit to the effect that the relative documents were not produced. But we find from the assessment orders themselves that ledgers, stock transfer book, sales forms, purchase forms, sales invoices and purchase invoices were produced in support of the return. It is asserted for the assessee before us that all the documents relevant to the transactions in question were before the assessing authority and constituted the record relating to the assessments. As we find that the eounter affidavit has been sworn to by an officer different from the one who had assessed and in view of the clear statement in the assessment orders themselves as to the production of the documents, we are inclined to give the benefit of doubt to the assessee and take it that the documents relevent to the transaction were placed befor the assessing authority; but at the same time, we cannot help feeling that neither the petitioner, nor the assessing authority exercised due diligence to find whether the transactions constituted second sales during interstate movement of goods and therefore, were not liable to tax under the S. 6 (2).
If the nature of the transactions is as described by the assessee and noticed by us in the earlier part of this order, the assessee would be entitled to have the benefit of Sec, 6 (2). Since we have found that the relevant records before the assessing authority, we are inclined to think that the mistake is one within the purview of Sec. 55, provided the transactions are eventually found to be second sales in the course of the inter-State movement of the goods.
On that view, the petitions are allowed. That means the applications for rectification of the mistake, if any will have to be disposed of afresh, after the concerned authority examining each transaction in question in the light of the relevant evidence. In the circumstances, there will be no order as to costs.
V.C.S