JUDGMENT A. R. TIWARI, J. - This order shall also govern the disposal of connected Misc. petitioners, M.P. No. 924 of 1984 Sunil Kumar v. State; M.P. No. 932 of 1984 Mohta v. State; M.P. No. 959 of 1984 Pannalal v. State; M.P. No. 960 of 1984 Manoharlal v. State; M.P. No. 961 of 1984 Abhay Kumar v. State; M.P. No. 962 of 1984 Rajmal v. State; M.P. No. 963 of 1984 Anil Kumar v. State and M.P. No. 964 of 1984 Kanhaiyalal v. State entailing common question of law and fact and heard analogously. 2. Facts lie in a narrow compass. 3. This petitioner and petitioners of aforesaid petitions have received notices for reassessment of sales tax under section 19(1) of the Madhya Pradesh General Sales Tax Act, 1958 (for short, "the Act") on the linchpin that levy of sales tax on sale of mawa at the rate of 2 per cent, instead of 8 per cent, turns out to be erroneous in terms of Full Bench decision rendered by this Court in [1984] 55 STC 140; (1982) 15 VKN 132 (Commissioner of Sales Tax, M.P. v. Gyanmal Kesharichand). The petitioners are registered under the Madhya Pradesh General Sales Tax Act and the Central Sales Tax Act, 1956. The rate of sales tax on cooked food was 2 per cent from the enforcement of Act till September 30, 1978, as per Schedule II, Part I of entry No. 8 of the Act. From October 1, 1978, cooked food is defined in section 2(cc) of the Act. For the first time from October 1, 1978, mawa was excluded from definition of "cooked food". Section 2(cc) contains as under : "(cc) 'cooked food' includes sweets and sweetmeats, mishri, batasha, chironji, shrikhand, rabadi, doodhpak but excludes ice-cream, kulfi, ice-candy, non-alcoholic drinks containing ice-cream, cakes, pastries, biscuits, chocolates, toffees, lozenges, peppermint drops and mawa." 4. The petitioners were charged at the rate of 2 per cent sales tax on mawa on the basis of decision given by Board of Revenue in the case of Regal Dairy, Mhow in Second Appeal No. 142/72 on September 13, 1972 [(1973) 4 VKN 314]. The Division Bench of this Court answered the reference under section 44 of the Act in favour of the assessee in M.C.C. No. 70 of 1977 [1981] 47 STC 374; (1981) 14 VKN 7 (Commissioner of Sales Tax v. Regal Dairy). The Division Bench of this Court answered the reference under section 44 of the Act in favour of the assessee in M.C.C. No. 70 of 1977 [1981] 47 STC 374; (1981) 14 VKN 7 (Commissioner of Sales Tax v. Regal Dairy). This decision is under challenge in the Supreme Court. 5. The respondents issued notices, impugned in these petitions on the basis of Gyanmal's case [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (FB). Sales tax on mawa is payable at the rate of 8 per cent in State case and 10 per cent in Central case. 6. These notices for reassessment are under challenge. Quashment is sought on the ground that the Full Bench decision is inapplicable and it gave no power to reopen and reassess when the appeal was pending in the Supreme Court and when factual matrix does not justify the step. 7. The respondents have filed returns in support of the notices. 8. I have heard both sides. 9. The question is simple, so should be the answer. The crucial question is whether notices under section 19(1) of the Act are permissible on the strength of Gyanmal's case [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB] ? 10. It is proper to reproduce the relevant part of section 19(1) of the Act - "(1) Where an assessment has been made under this Act or any Act repealed by section 52 and if for any reason any sale or purchase of goods chargeable to tax under this Act or any Act repealed by section 52 during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess within a period of two calendar years from the commencement of such proceedings, the tax payable by such dealer and the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount." 11. The aforesaid provision permits action : (a) When after making assessment, it is found for any reason that any sale or purchase chargeable to tax has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom. (b) When the Commissioner forms a proper opinion to reassess within time fixed after hearing and enquiry. (c) Where omission leading to such reassessment is attributable to the dealer and the case is made out for imposition of penalty. 12. It is noticeable that penalty is imposable only on concealment of turnover [1983] 52 STC 42 (MP) (Commissioner of Sales Tax v. Chhogmal Shankarlal). This provision of "omission" was substituted vide Act No. 25 of 1978 effective from October 1, 1978. It was not so from November 1, 1964 to September 30, 1978. 13. Section 19(1) is not invokable at will. To illustrate, the question of assessment of packing material, i.e., iron hoops at 2 per cent and 3 per cent under entry iron and steel became final. It was thereafter not open to the assessing authority to reopen the same under section 19(1) on the ground that iron hoops were not covered by entry iron and steel and hence in the absence of "C" form this should have been taxed at 10 per cent [(1987) 20 VKN 198 (Commissioner of Sales Tax v. Manilal)] is pertinent. In other words the expression "for any reason", employed in section 19(1), has a restrictive meaning. 14. Notices contain "reason" that levy of 2 per cent in the light of Gyanmal's decision [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB] is erroneous. Hence action is initiated to levy 8 per cent under State Act. As held in [1981] 48 STC 567 (MP) (Khushal Chand Laxmichand v. Commissioner of Sales Tax) section 19(1) does not give power to the assessing authority to reopen the case in the sense that it can reconsider the whole assessment or revise its previous assessment. The power is limited only to tax that escaped assessment. In [1963] 14 STC 67 (MP) (Firm Janta Hardware Stores v. B.S. Parihar, Assistant Sales Tax Officer), it is held : "But the requirement after the amendment is of a certainty of there being for any reason an under-assessment or escaped assessment. The power is limited only to tax that escaped assessment. In [1963] 14 STC 67 (MP) (Firm Janta Hardware Stores v. B.S. Parihar, Assistant Sales Tax Officer), it is held : "But the requirement after the amendment is of a certainty of there being for any reason an under-assessment or escaped assessment. There must be a causative and rational connection between the reason stated and the consequence of under-assessment or escaped assessment. The result of the amendment actually effected is that proceedings under the section cannot be initiated merely on the chance of under-assessment or escaped assessment or assessment at a lower rate or a wrong deduction being established in those proceedings." 15. In the instant case, there is no foundation of "escaped assessment" at lower rate but there is an attempt to "review and revise" under section 19(1) on account of court decision in another case. It is overlooked that such a situation is envisaged only under section 19-A(1) of the Act which reads as under : "19-A(1) Where any order passed in respect of a dealer for any period is rendered erroneous and prejudicial to the interests of revenue consequent to or in the light of any judgment or order of any court or Tribunal which has become final, then notwithstanding anything contained in this Act, the Commissioner may at any time within a period of three years from the date of such judgment or order initiated proceedings to reassess the tax payable by such dealer." 16. The Government Advocate placed reliance on [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB] (Commissioner of Sales Tax v. Gyanmal Kesharichand); [1968] 21 STC 309 (MP) (Commissioner of Sales Tax v. Ballabhdas Ishwardas); [1981] 48 STC 567 (MP) (Khushal Chand Laxmichand v. Commissioner of Sales Tax); [1981] 48 STC 254 (SC) (Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax); [1976] 38 STC 461 (All.) (Commissioner of Sales Tax v. Jassu Ram Bakery Dealer); [1985] 58 STC 262 (Raj) (Commercial Taxes Officer v. Babu Bakery) and host of other decisions which I need not refer, to explain the meaning of "cooked food" and principles of interpretation. 17. The point, however, is whether "review", i.e., "reassessment" is permissible under section 19(1) on the ground of subsequent decision in another case. 17. The point, however, is whether "review", i.e., "reassessment" is permissible under section 19(1) on the ground of subsequent decision in another case. It is contended that Regal Dairy's decision [1981] 47 STC 374 (MP); (1981) 14 VKN 7 (MP) stands impliedly overruled by Gyanmal's decision [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB]. It is, however, conceded that with regard to taxability on mawa, Regal Dairy's case [1981] 47 STC 374 (MP); (1981) 14 VKN 7 (MP) is direct in point and is still sub judice in apex Court. Till reversal, law, as in force, for the relevant period is that mawa is a cooked food and covered by entry 8 of Part I of Schedule II to the Act. The view of the Board of Revenue was upheld. Effective from October 1, 1978, it is now made luculent by insertion of (cc) in section 2 that "cooked food" excludes mawa. One implication may be that it remained inclusive till September 30, 1978. 18. Gyanmal's case [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB] does not say that mawa is not a "cooked food". All that is observed is that "sweeping interpretation of the entry" is not agreed to. The emphasis on "common parlance" or "popular sense" remained unaltered. Three factors thus stare in the face, - (a) It is not quite proper to see reversal in Gyanmal's case [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB] when matter is still "sub judice". (b) Discretion is not properly exercised. (c) Recourse to section 19(1) is not shown to be valid. 19. Lord Mansfield in John Wilkes case (1770) 4 Burr 2528 stated in classic terms that "discretion" meant sound one governed by law and guided by rules, not by humour. Lord Denning put it elegantly in Breen v. Amalgamated Engineering Union [1971] 1 All ER 148 and the Supreme Court stated in Khudiram's case [1975] 2 SCR 832; AIR 1975 SC 550 that in a Government of laws "there is nothing like unfettered discretion immune from judicial reviewability". 20. Lord Denning put it elegantly in Breen v. Amalgamated Engineering Union [1971] 1 All ER 148 and the Supreme Court stated in Khudiram's case [1975] 2 SCR 832; AIR 1975 SC 550 that in a Government of laws "there is nothing like unfettered discretion immune from judicial reviewability". 20. It is profitable to refer to the explanation, inserted by Amendment Act, 1976 in Order XLVII of Code of Civil Procedure, which mandated as under : "The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a Superior Court in any other case shall not be ground for the review of such judgment." Now how can an authority do that which even court is not permitted to do ? Hypothetically speaking, suppose "reassessment" is made and thereafter a five Bench decision comes or superior Courts' decision is rendered upholding view as propounded in case of Regal Dairy [1981] 47 STC 374 (MP); (1981) 14 VKN 7 (MP), then would it furnish a ground to review, revise or reassess again ? As held in [1977] 106 ITR 1 (SC); AIR 1977 SC 429 (Parashuram Pottery Works Co. Ltd. v. Income-tax Officer, Rajkot) every lis must have its point of finality. It cannot be unending process. 21. In [1991] 188 ITR 247; AIR 1991 SC 464 (Income-tax Officer v. Biju Patnaik) the apex Court with reference to the Income-tax Act, held that "section 147(a) of the Act postulates two conditions, namely, that the Income-tax Officer must, on the basis of material facts on record, prima facie, be satisfied that the income of the assessee is exigible to tax for that relevant assessment year and that he had reason to believe that it had escaped assessment. He must have reason to believe that the escapement of income was on account of the omission or failure on the part of the assessee to fully and truly disclose all the material facts necessary for the assessment. Both the conditions are conditions precedent to the exercise of the jurisdiction under section 147(a) read with section 148. This is so laid by this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer [1961] 41 ITR 191; AIR 1961 SC 372 and host of later decisions". 22. Both the conditions are conditions precedent to the exercise of the jurisdiction under section 147(a) read with section 148. This is so laid by this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer [1961] 41 ITR 191; AIR 1961 SC 372 and host of later decisions". 22. I find that in the instant case "conditions" precedent to the exercise of jurisdiction under section 19(1) of the Act are non-existent and notices have been issued without due application of mind and without proper appreciation of subtle difference between sections 19(1) and 19-A of the Act. 23. No individual can be seen lugged into proceedings which ex facie turn out to be futile and inutile. There is no lis like law v. justice. Between the two, there has to be harmony, not antinomy. 24. Lord Denning in Seaford Estates v. Asher [1949] 2 All ER 155, observed that material of which the Act is woven is not alterable but creases may be ironed out. In other words, so far and not further. Such is not the necessity here. 25. On March 19, 1987, this Court after hearing the matter for some time with reference to Regal Dairy's case [1981] 47 STC 374 (MP); (1981) 14 VKN 7 (MP) and Gyanmal's case [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB] felt that best course would be to keep the petitions pending till disposal of the State appeal by their Lordships of the Supreme Court in Regal Dairy's case [1981] 47 STC 374 (MP); (1981) 14 VKN 7 (MP) and postponed hearing till then. As a result of long lapse of time, parties requested for hearing and disposal in conformity with law as it stood. This is how the matter was heard. However, this indicated that propriety of issuance of notice under section 19(1) was seriously doubted even after Gyanmal's case [1984] 55 STC 140 (MP) [FB]; (1982) 15 VKN 132 (MP) [FB]. In my view, section 19-A of the Act takes care of such situation and permits initiation of proceedings for reassessment within a period of three years from the date of final judgment. Manifestly, recourse to section 19(1) of the Act is unsustainable in law. 26. In the ultimate analysis. I find that contentions of petitioners should be permitted to prevail. In my view, section 19-A of the Act takes care of such situation and permits initiation of proceedings for reassessment within a period of three years from the date of final judgment. Manifestly, recourse to section 19(1) of the Act is unsustainable in law. 26. In the ultimate analysis. I find that contentions of petitioners should be permitted to prevail. In the result, annexures 1 to 5 in this petition; annexures 2 and 3 in M.P. No. 924 of 1984 and M.P. No. 932 of 1984; annexures 3 and 4 in M.P. No. 959 of 1984 and M.P. No. 960 of 1984; annexures 7 and 12 in M.P. No. 961 of 1984; annexures 5 to 8 in M.P. No 962 of 1984; annexures 4 to 6 in M.P. No. 963 of 1984; annexures 9 to 16 in M.P. No. 964 of 1984, deserve to be and are hereby quashed as being arbitrary and without jurisdiction. If occasion arises, recourse to section 19-A of the Act may be considered if justified on facts and permissible under the law. 27. Ex consequenti, all these nine petitions are allowed but in view of legal debate, parties are left to bear their own costs as incurred. Counsel fee on each side shall be Rs. 5,000 (one set). 28. A copy of this order shall be placed in the record of each petition. Petitions allowed.