JUDGMENT J. N. SARMA, J. - This writ application has been filed challenging the legality and validity of the order of assessment dated February 7, 1994 passed by the Superintendent of Taxes, Nalbari, under section 8(3) of the Assam Purchase Tax Act, 1967 for the quarterly period ending June 30, 1993 assessing to tax, amongst others, the paddy purchased prior to June 30, 1993 but lying unmilled in the stock in the hands of the petitioner-company. It is urged that this assessment was made on extraneous consideration as the said stock did not acquire the character of the last purchase. The revisional order at annexure III against the order of assessment is also challenged. 2. By the impugned order of assessment a further demand to the tune of Rs. 16,706 being Rs. 15,072 on account of tax and Rs. 1,634 on account of interest was made in addition to the admitted tax already paid to the extent of Rs. 11,676. 3. There was a revision before the Joint Commissioner of Taxes, Assam and the Joint Commissioner by order dated October 23, 1994 rejected the revision. The order of assessment is annexure I to the writ application and the order of revision is annexure III to the writ application. 4. The brief facts are as follows : The petitioner is a private company and it has place of business at Nalbari and it carries on business of rice milling. The petitioner is liable to pay tax under the provisions of Assam Purchase Tax Act, 1967 and the Rules, that is Assam Purchase Tax Rules framed thereunder. The petitioner is liable to pay tax on the amount of purchase of paddy at the last point of time under the provisions of the Act. It is further stated herein that the tax on the paddy was payable up to June 30, 1993 under the above Act of 1967. But that Act was repealed on July 1, 1993 after coming to force of the new consolidated Act, that is, Assam General Sales Tax Act with effect from July 1, 1993. Under the new Act the paddy is not subjected to tax with effect from July 1, 1993. That for the period ending March 30, 1993 the petitioner No. 1 submitted return showing the value of paddy purchased at Rs. 5,90,922 along with payment of admitted tax of Rs. 11,676. Under the new Act the paddy is not subjected to tax with effect from July 1, 1993. That for the period ending March 30, 1993 the petitioner No. 1 submitted return showing the value of paddy purchased at Rs. 5,90,922 along with payment of admitted tax of Rs. 11,676. Thereafter a notice was issued by the authority for assessment and the petitioner appeared before the assessing authority produced the books of accounts, i.e., rokar, khata and stock register and they were verified by the authority. It was submitted before the authority that the paddy which was not milled remained in stock, it is not liable to tax as it did not acquire the quality of last purchase. The respondent No. 2 however, did not accept this contention and passed the order of assessment as indicated above under section 8(3) of the Act. 5. I have heard Shri G. K. Joshi, learned Advocate for the petitioner and Shri K. H. Choudhury, learned Advocate for the respondents. An affidavit-in-opposition has been filed on behalf of the respondents and an affidavit-in-reply has been filed on behalf of the petitioner. Shri Joshi contended as follows : (1) Stock and purchase of paddy which did not acquire the character of last purchase and is not liable to be taxed under the provisions of section 3(A) of the Act. It cannot be deemed to be turnover. (2) The question of onus which was raised in the order of revision was not considered by the assessment authority and the revisional authority unnecessarily considered the question of onus. Onus was duly discharged by disclosing the stock of unmilled paddy and that was not disputed. 6. In order to appreciate the contentions let us have a look at the Act, 1967. Section 3(2) is regarding the levy of tax. The entire section 3 is quoted below : Section 3 : (1) Subject to the provisions of this Act, every dealer shall be liable to pay tax on his turnover at such rates as may be specified in the (Schedule). Section 3(2) is regarding the levy of tax. The entire section 3 is quoted below : Section 3 : (1) Subject to the provisions of this Act, every dealer shall be liable to pay tax on his turnover at such rates as may be specified in the (Schedule). * * * Provided (* * *) that the State Government may grant a rebate not exceeding one per centum of the tax subject to such conditions as may be prescribed : Provided further that when the tax has been levied under this Act in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be prescribed. (2) The tax under sub-section (1) shall be levied at the point of last purchase of the taxable goods in the State by a dealer : Provided that where any dealer claims that any purchase of taxable goods by him was not last purchase of the said goods in the State by a dealer, the burden of proof of the same shall be on the dealer." 7. The relevant portion of the order of the assessing authority is quoted below : "The dealer had paid tax on this amount only. But as this Act has been repealed with effect from July 1, 1993 and as paddy is exempted under the Assam General Sales Tax Act, 1993 all the purchases of paddy including stocks remained unmilled till June' 93 must be taken for assessment of tax in this period. There is no scope for assessment hereafter. The dealer's contention of liability to tax only on the amount of paddy milled is not tenable and hence not acceptable. It is because in such a case huge amounts of taxable purchases will escape assessment resulting considerable loss of revenue." 8. The assessee authority was of the view that all the purchase of paddy including stock remained unmilled till June, 1993 must be taken into consideration by the assessing authority for calculating the tax payable. There is no scope for assessment thereafter as because the Act itself was repealed. It was felt that if that is not assessed to tax a huge amount of payable tax shall escape causing considerable loss of revenue. There is no scope for assessment thereafter as because the Act itself was repealed. It was felt that if that is not assessed to tax a huge amount of payable tax shall escape causing considerable loss of revenue. This cannot be a valid and legal approach to the matter inasmuch as it is for the Legislature to consider whether a particular commodity may be exempted from levy. The Legislature exempted paddy from tax and it was not the business of the authority to consider that aspect of the matter and to levy the tax. Further the authority did not consider the question whether this paddy acquired the character of last purchase till June 30, 1993, because that is the crux of the matter. If that paddy did not acquire the character of last purchase till June 30, 1993, no tax can be levied. What is last purchase, for that the learned Advocate Shri Joshi relied on two decisions : State of Madras v. T. Narayanaswami Naidu [1968] 21 STC 1 (SC). There the court considered section 4 of the Madras General Sales Tax Act, 1959 and that has been quoted in the judgment and the Supreme Court pointed out that the point of levy is at the point of last purchase in the State and the language is almost the same as it appears at section 3(2) of the Act that is quoted below : "The learned counsel for the appellant says that it is clear from sections 3 and 4 that a tax under the Madras Act is a yearly tax. In other words, he says that just as under the Indian Income-tax Act each assessment year is a self-contained unit, so is the assessment year a self-contained unit under the Madras Act. If that is so, he argues, then what happens in subsequent years cannot be taken into consideration for determining the taxability of any purchase inside the State of declared goods. He says that the taxable event is the last purchase in the State during the assessment year and if stocks are held at the end of the assessment year it follows that the assessee holding the stocks is the last purchaser in the State. In our opinion, this reasoning is fallacious. He says that the taxable event is the last purchase in the State during the assessment year and if stocks are held at the end of the assessment year it follows that the assessee holding the stocks is the last purchaser in the State. In our opinion, this reasoning is fallacious. It is true that section 3 and 4 speak of "a year", i.e., the financial year, and it is only the turnover during that year that is liable to taxation in the hands of the assessee, but section 4 has to be read with the Second Schedule, and reading section 4 with the Second Schedule, it seems to us clear that a dealer is not liable to pay a tax on the purchases until the purchases acquire the quality of being the last purchases inside the State. In other words, when he files a return and declares the stock in hand, the stock-in-hand cannot be said to have been acquired by last purchase because he may still during the next assessment year sell it or he may consume it himself or the goods may be destroyed, etc. He would be entitled to claim before the assessing authorities that the character of acquisition of the stock in hand was undetermined; in the light of subsequent events it may or may not become the last purchase inside the State." 9. In the Act in hand also has been stated that the tax is leviable at the point of last purchase, taxable in the hand of dealer at the point of last purchase. No doubt there is a proviso to this section. But that proviso is not relevant for the purpose in determining this case inasmuch as dealer clearly disclosed in his return that he has in the stock unmilled paddy and that cannot be considered for taxation. So the burden of proof as required by the proviso has been discharged. It is not the finding of the authority that there was no unmilled paddy as disclosed in the return. In the case before the Supreme Court also an argument has been advanced as has been done by Shri Choudhury that this unmilled stock must be deemed to be the point of last purchase. That argument was repealed by the Supreme Court and that portion of the judgment has been quoted above. 10. In the case before the Supreme Court also an argument has been advanced as has been done by Shri Choudhury that this unmilled stock must be deemed to be the point of last purchase. That argument was repealed by the Supreme Court and that portion of the judgment has been quoted above. 10. The next case on this point is Deputy Commissioner of Sales Tax (Law). Board of Revenue (Taxes) v. Padinjarakara Agencies [1985] 60 STC 308 (SC). There the question was that what will be the rate of tax before 30th of June, 1974 inasmuch as the rate of tax was raised subsequent to 30th of June, 1974. The earlier rate of tax was 3 per cent and it was raised to 5 per cent and the question which arose was what is the point of last purchase to determine the rate of tax and the Supreme Court relying on the earlier case stated that equally it is clear that the assessee could not be made liable to the tax on the purchase made by it prior to 30th June, 1974 unless the purchases made by it acquired the quality of last purchase. 11. This being the position, this writ application is to be allowed which I hereby do. The order of assessment as well as revisional order, that is annexures I and III shall stand quashed. 12. It is made clear that the authority may make fresh assessment in accordance with law by following the procedure. Writ application allowed.