An order under section 16(1)(a) of the Tamil Nadu General Sales Tax Act, 1959, does not require reflection of the original order of assessment in that order, but in the event the authority chooses to make a composite order by including in the order relating to the escaped turnover, the tax liability already determined in the original assessment proceedings by bodily lifting the original assessment order and adding to it the order under section 16(1)(a) of the Act, it may clothe the assessee with the right, while questioning an order under section 16(1)(a) to also question the original assessment, which has been included in the order under section 16(1)(a) of the Act and the period of limitation in such a case may commence from the date of the composite order, irrespective of the fact that the period for questioning the original order of assessment had expired from the date of the original assessment.

DR. A. S. ANAND, C.J.

These writ appeals are typical cases of an assessee seeking to make a virtue of his vice.

2. The respondent herein, a dealer having his business of sale of coconut oil, oil-cakes, pulses and grams, etc., is the assessee, who was the petitioner in W.P. Nos. 5445, 5446 and 5447 of 1980. The writ petitions had been filed by the assessee for the issue of a writ of certiorarified mandamus or any other writ, order or direction to call for the record of assessments for the years 1972-73, 1973-74 and 1974-75 in assessment proceedings, TNGST No. 526062/72-73, dated October 19, 1974, TNGST No. 526062/73-74, dated July 30, 1975 and TNGST No. 526062/74-75, dated March 19, 1976, respectively, and to quash the orders of assessment and to direct the respondent to refund the tax, additional tax as well as surcharge paid by the assessee pursuant to those orders of assessment. The circumstances in which the writ petitions were filled are :

3. While submitted the returns, the assessee had sought exemption for the packing charges and succeeded. After the completion of the assessment proceedings, the Joint Commercial Tax Officer found that the exemption of tax for packing charges had been wrongly claimed and granted and consequently, treating it as a case of escaped turnover, he initiated action under section 16 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the Act") and issued notices to the assessee proposing to levy tax in respect of the escaped turnover. Ultimately, after receiving the objections from the assessee, by three separate proceedings, dated March 13, 1979, April 2, 1979 and April 2, 1979, he determined the escaped turnover relating to packing charges for the three years in question as amount to Rs. 58, 309 for 1972-73, Rs. 50, 002 for 1973-74 and Rs. 78, 375 for 1974-75. The escaped turnover was subjected to levy of tax at 3 1/2 per cent multi-point and notices in form B8 confining to the escaped assessment were issued. Projecting that the orders of reassessment issued under section 16 of the Act on March 13, 1979, April 2, 1979 and April 2, 1979, respectively had superseded and obliterated the original assessment orders dated October 19, 1974, July 30, 1975 and March 19, 1976, the assessee filed the three writ petitions, inter alia, claiming refund of the tax paid on the original assessments. Reliance was placed by the assessee on the judgment of this Court in Deputy Commissioner (C.T.) v. Indian Refrigeration Industries Private Limited. It was contended before the learned single Judge that the reassessment order reflected the assessable turnover in its entirely and perspective and after the reassessment, the original assessment order stood set aside and, therefore, the amount of tax already paid by the assessee in the original assessment proceedings ought to be refunded. The learned single Judge allowed the writ petitions by the following order :

"The prayers in these three writ petitions are on the same lines. The petitioner is one and the same. The petitioner asks for a writ of certiorarified mandamus to quash the original assessment orders for the years 1972-73, 1973-74 and 1974-75 and to order refund of the taxes, etc., indicated in the prayers in the writ petitions.

2. The case of the petitioner is built on the basis that the original assessment orders have been superseded by the orders of reassessment under section 16 of the Tamil Nadu General Sales Tax Act, 1959, and the original assessment orders can no longer survive. This case of the petitioner has got the support of the pronouncement of this Court in Deputy Commissioner (C.T.) v. Indian Refrigeration Industries Private Limited. The proposition that has been settled by the pronouncement is that the reassessment order truly reflects the assessable turnover in its entirety and perspective and by such an order the original assessment order is virtually set aside. That ruling governs the present cases. However, Mr. R