JUDGMENT
Syed Shah Mohammed Quadri, J.
1. This T.R.C. is directed against the order of the Sales Tax Appellate Tribunal in T.A. No. 811 of 1985 dated March 3, 1987. The State is the petitioner. In the assessment year 1977-78 the respondent-assessee which is a dealer registered under the Andhra Pradesh General Sales Tax Act, 1957, hereinafter referred to as “the Act”, was assessed to sales tax by order dated July 13, 1978. That order was served on the assessee was served on the assessee on December 10, 1978. The assessee carried the matter in appeal before the deputy Commissioner (C.T.). By order dated February 18, 1980, the appellate authority allowed the appeal and remanded the case for disposal in accordance with law after deciding the question with regard to the supply of foodstuffs effected by them as to whether it constituted sale. After remand the assessing authority passed a fresh order of assessment on March 30, 1983, which on the assessee on April 12, 1983. By order dated July 13, 1985, in R.R. No. 7/84-85 the Deputy Commissioner passed orders purporting to receive the order passed by the assessing authority on July 13, 1978,. The order pertains to two aspects, the first is with regard to grant of exemption by the assessing authority after remand. So far as this aspect is concerned there is no dispute. The controversy, however, relates to the second aspect of the order by which the Deputy Commissioner added a sum of Rs. 2,22,388 as part of the turnover which has escaped assessment in exercise of power under section 14(4-C) directing that the said turnover be taxed at the rate of 4(1/2) per cent. Aggrieved by the said order of the Deputy Commissioner, the assessee went in appeal before the Sales Tax Appellate Tribunal. The Tribunal took the view that as the Assistant Commissioner (C.T.), Appeals, did not set aside the order of assessment dated July 13, 1978, on the ground of the same being void but considering the question whether the supply of foodstuffs, was by way of service in the hotel or was a sale across the counter, as such for purposes of calculating the limitation the starting point should be from December 10, 1978, the date of passing of the original order of assessment but not from March 30, 1983, when the fresh order of assessment was passed by the assessing authority after remand. It, however, rejected the contention that the Deputy Commissioner could have passed the order under section 20(2) of the Act but held that the exercise of power was beyond the limitation. The appeal was partly allowed on March 3, 1987. It is the correctness of this order that is assailed in this T.R.C. as noted above.
2. The learned Government Pleader has contended that for the purpose of exercise of the power under section 14(4) the limitation will have to be counted from the last order of assessment, i.e. from March 30, 1983 and not from the first order of assessment, July 13, 1978, and if it is so counted the exercise of power will be within the limitation.
3. Mr. A. K. Jaiswal, the learned counsel appearing for the respondent-assessee, on the other hand, submits that no part of the additional turnover was the subject-matter of the order of assessment passed pursuant to the remand order, therefore the limitation ought to be counted for July 13, 1978, and the Tribunal has rightly held that the exercise of the revisional power was not within the limitation.
4. The short question arises that arises for consideration is whether the Tribunal was right in holding that the order of the Deputy Commissioner dated July 13, 1985, is barred by limitation.
5. It would be appropriate to note here the provision dealing with the controversy in debate. Section 14 of the Act deals with assessment of tax. Sub-section (4) of section 14, which is relevant for our purpose, reads as follows :
“(4) In any of the following events, namely, where the whole or any part of the turnover of a business of a dealer has escaped assessment to tax, or has been underassessed or assessed at a rate lower than the correct rate, or where the licence fee or registration fee has escaped has levy or has been levied at a rate lower than the correct rate, the assessing authority may, after issuing a notice to the dealer, and after making such enquiry as he may consider necessary, by order, setting out the grounds therefor, –
(a) determine to the best of his judgment the turnover that has escaped assessment and assess the turnover so determine;
(b) assess the correct amount of tax payable on the turnover that has been under-assessed;
(c) assess at the correct rate the turnover that has been assessed at a lower rate;
(cc) assess the correct amount of tax payable, in a case where any deduction or exemption has been wrongly allowed;
(d) levy the licence fee after determining to the best of his judgment the turnover on which such fee is payable;
(e) levy the registration fee that has escaped levy;
(f) levy the correct amount of licence fee or registration fee in a case where such fee has been levied at a rate lower than the correct rate
In addition to the tax assessed or fee levied under this sub-section, the assessing authority may also direct the dealer to pay a penalty as specified in sub-section (8).”
6. Thus, sub-section (4) provides that for the events enumerated therein where the whole or any part of a business of a dealer has escaped assessment to tax, or has been under-assessed or assessed at a rate lower than the correct rate, or where the licence fee or registration fee has escaped levy or has been levied at a rate lower than the correct rate, the assessing authority may after making such an enquiry as considered necessary and after issuing notice to the dealer setting out the grounds therefor and assess the correct tax or levy the fee. He has also been empowered to order payment of penalty as specified in sub-section (8). The same powers are conferred on authorities higher than the assessing authority including the Assistant Commissioner (Intelligence), the Deputy Commissioner and the Joint Commissioner concerned under sub-section (4-C) of section 14, Therefore, the Deputy Commissioner’s power to act under sub-section (4) of section 14 read with sub-section (4-C) of that section, is beyond dispute.
7. The question, however, is whether the exercise of the power has been within the period of limitation. Sub-section (4-A) of section 14 provides that any assessment made under sub-section (4) shall be made within a period of four years from the date on which any order of assessment or levy was served on the dealer. It has already been noted above that the first order of assessment was dealer. It has already been noted above that the first order of assessment was served on December 10, 1978 and the second order of assessment (passed on remand) was served on April 12, 1983. For purposes of counting the limitation in this case, what is the correct date from which the limitation will start ? In so far as the first order of assessment is concerned which was passed on July 13, 1978, it is form that order that the turnover has escaped assessment and that the power could have been exercised by the Deputy Commissioner within four years from the date of the service of that order because the second order of assessment passed by the assessing authority was governed by the directions contained in the order of remand passed by the appellate authority in its order dated February 18, 1980. No part of the escaped turnover was subject-matter of appeal and the assessing authority could not have dealt with that aspect after remand. Though we are inclined to take the view that even after passing of the order assessment after remand, it was open to the Deputy Commissioner to exercise that power in respect of the original order of assessment and bring to tax the escaped turnover, but then it must within the period of limitation prescribed under sub-section (4). Inasmuch as the reasons for assessing or not assessing the escaped turnover, could not be discerned from the second order, i.e. the order passed after remand, for the reasons we have already mentioned above, the period of limitation could not be computed from the date of service of the second order. If the date of service of the first order is taken into consideration, the order is admittedly beyond limitation.
8. For the above reasons, we find no merit in the T.R.C. It is accordingly dismissed. In the circumstances of the case we make no order as to costs.
9. Petition dismissed.