SYED SHAH MOHAMMAD QUADRI, J.

( 1 ) THE question which arises for consideration in this tax revision case, is the scope of the power of the assessing authority to revise the assessment under section 14 (4) of the A. P. General Sales Tax Act, 1957, for short ("the Act" ). It will be useful to read that provision here :"14 (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 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 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 determined; (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 ). "

( 2 ) A plain reading of the provision extracted above shows that where any part of, the turnover of business of a dealer has escaped assessment to tax or has been under-assessed or assessed at a rate lower than the correct rate, the assessing authority is empowered to determine (1) the turnover that has escaped assessment; (2) assess the correct amount of tax; (3) assess the correct rate on the turnover; (4) assess the correct amount of tax payable in a case where any deduction or exemption has been wrongly allowed; (5) levy the licence fee; (6) levy the registration fee; (7) levy the correct amount of licence fee or registration fee, etc. Before this power could be exercised, the authority has to issue notice to the dealer and make such enquiry as he may consider necessary, after setting out the grounds for invoking power under section 14 (4) and the action proposed to be taken. While exercising power under the above provision, two aspects should be kept in mind, viz. , (1) that the dealer should not be allowed to evade payment of tax, legitimately due by him; and (2) there should be no harassment of a dealer by exercising this power.

( 3 ) TO ensure that the dealer does not evade tax, the Act has incorporated provision like the revisional power under section 20, which may be exercised by the authorities mentioned therein who are superior in rank to the assessing authority, on the basis of material on record; to satisfy the principle that the assessee is not harassed over and over again in respect of the assessment which has become final, the exercise of power by the assessing authority under sub-section (4) of section 14 has to be confined to cases where there is material de hors the record, that is, fresh material before the assessing authority which justifies the exercise. Amendment of law with retrospective effect or the judgment of the Supreme Court or the High Court is treated as sufficient material to exercise that power.

( 4 ) THE learned Government Pleader, however, argues that as the authority has not adverted to the question, viz. , whether there has been purchase of the silver and gold ornaments from the unregistered dealer, therefore, in such a case the exercise of the power under the aforesaid provision is justified. We are unable to accept this contention. The criterion to judge whether there has been a reasonable exercise of power under the said provision is not whether there was lack of diligence but whether there was lack of material at the time of assessment that necessitated exercise of the power. If necessary material was available on record but the assessing authorities had not adverted to relevant aspect due to lack of diligence, it would not afford a ground to the assessing authority or his successor to exercise power under section 14 (4), but if the record did not contain the relevant material which comes to the notice of the authority from other sources after the assessment then it would afford a justifiable ground to exercise power under that section. In other words, for the exercise of power under section 14 (4), reliance should be made not on the material on record but on the material de hors the record which came to the notice of the assessing authority subsequent to the assessment. In short, time-application of mind by the assessing authority to the material on record at the time of assessment, is not a justifiable ground to invoke power under section 14 (4) of the Act. The same view is taken by a Division Bench of this Court in State of Andhra Pradesh v. Kedia Vanaspati (P) Ltd. [1994] 95 STC 208 [LQ/TelHC/1994/222] to which one of us (Syed Shah Mohammad Quadri,.) was a party. To the same effect is the pronouncement in State of Andhra Pradesh v. Ratna Sree Box Makers [1989] 75 STC 82 (AP [LQ/TelHC/1989/73] ). That being the position in law, the exercise of power under section 14 (4) in the instant case on the mere ground that the assessing authority did not advert to the aspect, viz. , that there has been purchase of the silver and gold ornaments from an unregistered dealer, cannot be a justifiable reason. In our view the Tribunal was right in coming to the conclusion that the original authority himself did not advert to the aspect of purchase of old jewellery by the assessee and also utilisation of the old jewellery in the manufacture of new jewellery which was sold by the assessee.

( 5 ) FOR the aforesaid reasons, the order under revision is set aside and the T. R. C. is accordingly allowed. No costs.

( 6 ) PETITION allowed.