An assessment under section 16 of the Tamil Nadu General Sales Tax Act, 1959 can be made even if there is no original assessment under section 12 of the Act, as the assessment under section 16 includes the original turnover and the original assessment.

In both these revisions, the State is the petitioner. The assessee is Modern Electrical, Chengam. The assessee was finally assessed by the Deputy Commercial Tax Officer II, Enforcement, Tiruvannamalai (hereinafter referred to as "the D.C.T.O.") under section16 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the Act"), for the assessment year 1974-75 on an escaped turnover of Rs. 7, 600 at 9 per cent. besides levying penalty of Rs. 513 under section16(2) of the Act on the suppressed turnover of Rs. 3, 800. For the assessment year 1975-76, the assessee was assessed on an escaped turnover of Rs. 4, 200 at 8 per cent. besides levy of penalty of Rs. 250 being 1(1/2) times the tax due on the turnover actually suppressed being Rs. 2, 100.

2. Aggrieved assessee filed an appeal before the Appellate Assistant Commissioner, before whom it was submitted that there was no assessment under section12 of the Act and therefore, the assessment under section16 of the Act cannot be made. Since there was no assessment, made under section 12 of the Act, the Appellate Assistant Commissioner came to the conclusion that the assessment under section16 of the Act is not possible. Therefore he held that the assessment made under section16 of the Act is without jurisdiction. Accordingly, he remanded the assessments back to the territorial officer for making fresh assessments.

3. Aggrieved assessee filed second appeals before the Tribunal. The Tribunal also came to the conclusion that inasmuch as the assessment under section12 of the Act was not made, the assessment under section16 of the Act could not be made. Therefore, the Tribunal held that the assessment made under section16 of the Act was without jurisdiction. Accordingly, the assessments were set aside by the Tribunal. The Tribunal also pointed out that there is no case for remanding the matter to the assessing authority for making fresh assessments. It is against the order passed by the Tribunal in the assessment year under consideration, the State in revision before this Court.

4. The learned Additional Government Pleader (Taxes) submitted as under : In the present case, in the assessment years under consideration, as per the entries made in the "A" register, assessments under section12 of the Act were made and since the assessments were stated to be "nil" assessments, the order of assessment was not communicated to the assessee. Therefore, it was submitted that the assessment made by the enforcement officials under section 16 and section16-A of the Act on the escaped turnover is perfectly justifiable. It was pointed out that the Tribunal was not correct in stating that no assessment was made in the case of he assessee under section12 of the Act. Therefore, it was submitted that the assessment made by the D.C.T.O., under section16 of the Act in the assessment years under consideration and the levy of penalty under section16(2) of the Act, are in order.

5. However, the learned counsel for the assessee submitted that the assessment made under section12 of the Act was not brought to the notice of the Tribunal at the time when the appeals were heard. Therefore, accordingly to the learned counsel for the assessee, no assessment was made in the case of the assessee under section12 of the Act. It was further submitted that without making an assessment under section12 of the Act, the assessment under section16 of the Act or under section16-A of the Act of the escaped turnover cannot be made.

"It was also submitted that inasmuch as the assessment made under section12 of the Act was not served on the assessee, it will be deemed to be not exiting in the eye of law. It was, therefore, pleaded that the order passed by the Tribunal setting aside the assessments made by the D.C.T.O. II, Enforcement Wing, Tiruvannamalai, is in order.

6. We have heard the rival submissions. For the assessment years 1974-75 and 1975-76, the D.C.T.O. made an assessment under section16 of the Act on t