ORDER 1.00. Impugned order. It is in TNGST 5921461/98-99, dated 30.8.2004, wherein the respondent re-assessed the total taxable turnover of the petitioner at Rs. 60,00,000/- for the year 1998-99 and levied tax of Rs. 6,60,000/- and penalty of Rs. 9,90,000/- and accordingly ‘B3’ and ‘U’ notices and Form-54 are issued. 2.00. It is now under challenge. 2.01. The challenge is on two grounds: The first and foremost is on the point of limitation. The other is on merits of the order. 3.00. Decision: The first point is rejected whereas the second point is accepted. The detailed reasons are assigned in this order. 4.00. Before discussing the points, I may now proceed to examine the relevant facts. 4.01. The case of the petitioner is that he is a registered dealer under Tamil Nadu General Sales Tax Act hereinafter referred as ‘Act’, and assessee on the file of the respondent herein, as he is dealing with business in ‘V anchors, welding of pipes, pins etc., 4.02. It is stated that the turnover of the petitioner has been assessed to total taxable turnover of Rs. 47,528/- and recorded as Nil for the assessment year 1998-99 by the Assistant Commercial Tax Officer, Thoothukudi-III. It is done on the basis of self-assessment under Section 12(l)(a) of the Act, on the ground that the petitioner has done job work and received labour charges to the tune of Rs. 47,528/-. 4.03. The respondent being unsatisfied with assessment, decided to re-open and verify the accounts to detect any escaped turnover. Hence he issued the notice and finally the impugned order. 5.00. Heard both sides. 5.01. The points for my determination is: 1)Whether the respondent has authority to re-open the assessment after the lapse of 5 years? 2) Whether the ex-parte order is legal? Point 1: 6.00. The contention of the learned counsel for the petitioner is that under Section 16(2) of the Act, the respondent has no power to re-open the assessment and the impugned order is barred by limitation and it is invalid and unenforceable. 6.01. 2) Whether the ex-parte order is legal? Point 1: 6.00. The contention of the learned counsel for the petitioner is that under Section 16(2) of the Act, the respondent has no power to re-open the assessment and the impugned order is barred by limitation and it is invalid and unenforceable. 6.01. Perused Section 16 of the Act, which reads as follows: “Section 16(l)(a): Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of sub-section (2) at any time within a period of five years from the date of order of the final assessment by the assessing authority, determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such assessment.” (emphasis supplied) As per Section 16(2): “Section 16(2): The assessing authority can direct the dealer to pay the tax assessed under Clause (a) sub-section (1) of Section 16 by way of penalty etc.” 6.02. Close perusal of the above provision, clarifies that under Section 16(l)(a) whenever the assessing authority has a reason to believe that the dealer has escaped the assessment to tax in making the assessment, the assessing authority may direct the dealer to pay the additional tax and also the penalty as mentioned in sub-section (2) of Section 16 of the Act. 6.03. According to Section 16(l)(a), the provisions of sub-section (2) are applicable for re-opening the assessment within a period of five years from the date of the order of the final assessment. 6.04. The forceful contention of the learned counsel for the petitioner is, in the instant case, the date of the final assessment order is 21.6.1999 and within five years the respondent has every authority to re-open the assessment and the said date has expired by 21.6.2004, whereas the notice is dated 21.7.2004 and the order is dated 30.8.2004 and both are issued after lapse of five years. 6.05. In the instant case the respondent intend to re-open the assessment on the ground that the petitioner has supplied pins, ‘V anchors, welding of pipes etc., to Sterlite Industries (India) Ltd., Tuticorin to a large amount. 6.05. In the instant case the respondent intend to re-open the assessment on the ground that the petitioner has supplied pins, ‘V anchors, welding of pipes etc., to Sterlite Industries (India) Ltd., Tuticorin to a large amount. This fact can be examined on verification of the records, viz., accounts. It is a specific case of escaped turnover. Since the re-assessment is permissible under Section 16 on the escaped turnover the respondent can do so, but within five years from the date of the final assessment. 6.06. Perused the impugned order, which discloses that according to respondent, the dealers have supplied pins, ‘V anchors, welding of pipes etc., to one Sterlite Industries (India) Ltd., Tuticorin to a large amount. 6.07. In order to verify the genuineness of the transactions, the accounts of the dealers were called for from the petitioner. The respondent has every authority to verify the records to decide the genuineness of the transactions. 6.08. The impugned order discloses that three opportunities were given to the petitioner and ultimately the notice dated 21.7.2004 was issued. 6.09. Para 3 of the petition affidavit discloses that respondent issued summons in Form 12 as per Rules of Tamil Nadu General Sales Tax, calling for production of accounts for re-assessment and the date of notice is 25.3.2004. It is an admitted case of the petitioner that they sought for one month time vide their letter dated 1.4.2004. On behalf of the petitioner, it is clearly stated that they sought for few adjournments. 6.10. I do not understand why the petitioner sought for such long adjournments when his accounts are already verified and assessed in the year 1999 itself. So they have introduced delay tactics. The said fact was also noted in the impugned order. 6.11. There is a direct decision of this Court on this point. In all fairness the learned counsel for the petitioner Mr. R.D. Ganesan has cited this decision and the truthful and fair advocacy of Sri. R.D. Ganesan is placed on record with appreciation. 6.12. The Decision: The points before me without any ambiguity: K. Lakshmanaswami Chettiar and Sons v. State of Tamil Nadu 46 STC 327: In this case the assessee was assessed a taxable turnover for the year 1966-67 and the order was issued on 12.1.1968. R.D. Ganesan is placed on record with appreciation. 6.12. The Decision: The points before me without any ambiguity: K. Lakshmanaswami Chettiar and Sons v. State of Tamil Nadu 46 STC 327: In this case the assessee was assessed a taxable turnover for the year 1966-67 and the order was issued on 12.1.1968. While so, the assessing authority issued a notice to the dealer in Form 12 to produce their accounts for the year 1966-67 and the notice was issued on 17.3.1972. There was a direction to produce the records on 21.3.1972. The assessee did not produce the accounts and sought time. The assessing authority again issued notice on 21.3.1972 to produce the accounts and again the assessee did not comply. A further notice was issued on 25.3.1972, the assessing authority observed that there was every reason that the turnover report in Form A-2 for 1966-67 did not represent the correct turnover and the assessee has suppressed the accounts and since the assessee has not produced the accounts to brief the correctness of the turnover, the assessing authority proposed to estimate the turnover that had escaped assessment and also levy penalty and the said notice was despatched on 27.3.1972 and the assessee received it on 3.4.1972. The assessee was granted time up to 11.4.1972 to give the reply. The assessee made objection, stating that the revision of assessment was time-barred on 31.3.1972 and the assessing authority cannot re-open the assessment in April 1972. The assessing authority rejected the contentions. 6.13. Thereafter, an appeal preferred before the appellate Assistant Commissioner who held that since the assessee has not received any communication up to 3.4.1972, hence it is beyond the period of limitation of five years prescribed under Section 16 of the Act, so the assessment cannot be re-opened. 6.14. The Board rejected the said contention and upheld the order of the assessing authority and set aside the order of the appellate Assistant Commissioner. 6.15. Aggrieved by the same, the assessee preferred the writ and this Court was pleased to hold that the question of limitation could not arise in respect of the assessment order where the pre-assessment notice has been issued within a period of five years. 6.15. Aggrieved by the same, the assessee preferred the writ and this Court was pleased to hold that the question of limitation could not arise in respect of the assessment order where the pre-assessment notice has been issued within a period of five years. After saying so, this Court was pleased to observe that there is no substance in the contention of the assessee that the re-opening of the assessment by assessing authority was bad in law as the relevant notice was issued prior to the expiry of the time limit. (emphasis supplied) 6.16. Therefore, in the above case, it is clearly held that once the pre-assessment notice has been issued within a period of five years it is within the period of limitation. Though this point is not highlighted by the learned senior counsel Sri. R.D. Ganesan before me, but rightly communicated to the Court by citing the above decision. 6.17. In the instant case, the admitted facts of both sides is that the assessing authority intend to re-open the assessment and the reasons for re-opening is an escaped turnover. The first notice is dated 25.3.2004, directing the assessee to appear before the assessing authority on 7.4.2004. It is the first pre-assessment notice. This date has to be taken into consideration while calculating the limitation. So within five years from the date of assessment order, the notice in Form 12 as per Rule 47 has been issued. This is the pre-assessment notice and it has been issued within the period of five years. Therefore, the question of limitation will not arise in respect of this case. 6.18. This particular point has been further clarified by the Honourable Supreme Court of India in the following judgment: Sales Tax Officer, Special Circle, Ernakulam v. Sudarsanam Iyengar and Sons AIR 1970 SC 311 : (1969) 2 SCC 396 : (1970) 25 STC 252 (SC): The facts in this case are, for the assessment year 1962-63 the Sales Tax Officer served the relevant notice in December 1965 and the prescribed period to re-open the assessment is only three years from the end of the relevant assessment year. For the assessment year 1962-63 as per Rule 33 the re-opening of the assessment to determine the turnover is three years. 6.19. For the assessment year 1962-63 as per Rule 33 the re-opening of the assessment to determine the turnover is three years. 6.19. While discussing on the subject, with regard to the word ""determine"" occurring in the Rule the Honourable Supreme Court held as follows: ""Our attention has been invited to the appropriate dictionary meaning of the word ‘determine’ which is ‘to settle or decide’ - to come to a judicial decision-(Shorter Oxford English Dictionary). It is suggested that the word ‘determine’ was employed in Rule 33 with a definite intention to set the limit within which the final order in the matter of assessment should be made, the limit being three years. We find it difficult to accept that in the context of sales tax legislation the use of the words ‘proceed to assess’ and ‘determine’ would lead to different consequences or results. In this connection the words which follow the word ‘determine’ in Rule 33 must be accorded their due significance. The words ‘assess the tax payable’ cannot be ignored and it is clearly meant that the assessment has to be made within the period prescribed. Assessment is a comprehensive word and can denote the entirety of proceedings which are taken with regard to it. It cannot and does not mean a final order of assessment alone unless there is something in the context of a particular provision which compels such a meaning being attributed to it. In our judgment, despite the phraseology employed in Rule 33 the principle which has been laid in other cases relating to analogous provisions in sales tax statute must be followed as otherwise the purpose of a provision like Rule 33 can be completely defeated by taking certain collateral proceedings and obtaining a stay order as was done in the present case or by unduly delaying assessment proceedings beyond a period of three years“. 6.20. The close perusal of the above observation of the Honourable Supreme Court, clarifies that the period of limitation cannot and does not mean a final order of the assessment alone. The Supreme Court has clarified that the assessment has proceeded to assess and that will be taken as the date for determining the assessment. The result of the judgment of the Supreme Court is about the periodicity of the assessment, eventhough the assessment was completed beyond the period of limitation. The Supreme Court has clarified that the assessment has proceeded to assess and that will be taken as the date for determining the assessment. The result of the judgment of the Supreme Court is about the periodicity of the assessment, eventhough the assessment was completed beyond the period of limitation. The commencement of the assessment is to be taken into consideration. 6.21. In Section 16(l)(a) the same word” determine “ is employed and the Apex Court has settled the issue once for all through the decision cited above. Further this Court in Anglo French Textiles Limited, Pondicherry v. State of Tamil Nadu rep. by the Deputy Commercial Tax Officer, Madurai, in W.P. Nos. 3939 to 3941 of 1971 held that in computing the period of limitation, the time during delay in proceedings for assessment or re-assessment ought to be excluded and it is clearly held that when the pre-assessment notice was already issued prior to the period of five years and that therefore, the assessment can be completed at any time thereafter. This Court followed the ‘judgment of Supreme Court as referred above. 6.22. Thus in the instant case, the assessing authority has issued the pre-assessment notice on 25.3.2004 itself and that is within the period of limitation. 6.23. Section 16(l)(a) also says that any time within a period of five years from the date of order of final assessment by the assessing authority, ”determine’ ‘to the best of its judgment the turnover - the word “determine” has been discussed in detail in the judgment of the Supreme Court referred supra. 6.24. The power to tax is an incident of sovereignty. The policy of tax in its effectuation, might, of course, bring in some hardship in some individual cases. But that is inevitable. Every cause, it is said, has its martyrs. Then again, the mere execessiveness of tax or even the circumstance that its imposition might tend towards the diminution of the earnings or profits of the persons of incidence does not, per se, and without more, constitute violation of the right. 6.25. Statute is the edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. 6.25. Statute is the edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The Court is bound to interpret and apply the provisions of the Act as they stand without going behind the wisdom of the legislature. Unless there is an intention to the contrary, the words in a statute should be given their ordinary grammatical or natural meaning. The literal rule of statutory interpretation demands that if the statute is plain, the Courts must apply it regardless of the result. The plain language of a statute must override the supposed intendment of the legislature and cannot be amended or stretched by the Court. Every word of a statute has to be assumed to have been deliberately and consciously incorporated therein by the legislature, and if the language of a statute is clear and explicit, effect must be given to each word. One should look squarely at the words in the light of what is expressly stated and nothing can be implied so as to supply any assumed deficiency. No words should be added or subtracted or altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absurd, unreasonable, unworkable, or totally irreconcilable with the rest of the statute. The Court ought not, under any circumstances, substitute its own impressions, ideas or notions of justice in place of the legislative intent as is available from a plain reading of the statutory provisions. 6.26. Principles or rules of interpretation have been devised to assist the Courts in the interpretation of statutes, where the words or the language used there are ambiguous and there is a doubt about the meaning thereof; provided the doubt is real, and not merely conjectural or fanciful. They are not rules of law. They are merely aids to construction or interpretation of statutes and should not be treated as masters. They can be discarded or ignored, if the facts and circumstances so require, and new rules of interpretation may be evolved as and when necessary to meet new or unique situations. They are not rules of law. They are merely aids to construction or interpretation of statutes and should not be treated as masters. They can be discarded or ignored, if the facts and circumstances so require, and new rules of interpretation may be evolved as and when necessary to meet new or unique situations. So long as there is no ambiguity, conflict or absurdity in the statutory language, resort to any interpretative process to unfold, the legislative intent becomes impermissible. 6.27. Therefore, if any statutory provision is plain and unambiguous admitting of no second meaning, then no rule of interpretation needs to be employed and no extraneous considerations need to be imported. The object of all constructions or interpretations is to ascertain the intention of the law-makers and to make it effective. 6.28. For all the foregoing reasons this point is answered holding that the decision of the assessing authority to re-assess is not barred by limitation and it is within time. 7.00. Point 2: 7.01. The impugned order itself speaks that it is an ex-parte order. It is true that the dealer has not availed the opportunity despite notice. The authority observed the reason that reasonable opportunity was given. As the dealer did not produce the accounts he confirmed the taxable turnover of Rs. 60,00,000/-. 7.02. The office of the Special Commissioner of Commercial Taxes, Chepauk, issued a circular in Acts Cell-VI/13234/2001, wherein, it is clearly observed that the assessment proceedings being a quasi-judicial process, the assessing authorities are requested to follow carefully and consider various points mentioned in the circular. 7.03. The circular says that the assessment should be based on relevant material and not on suspicions or surmises. No guess work should be introduced. Capricious assessment without regard for available material is not permissible under law. The circular also clarifies that fair opportunity is to be given to the assessee and judicial consideration given to the representations, evidence and materials furnished by him. It is clearly stated that the assessee is to be given reasonable and adequate opportunities as the assessment is proposed to be used against his interest. 7.04. In the instant case, there is no personal hearing and it is an assessment on non-examination of the records before imposing the penalty etc. 7.05. It is clearly stated that the assessee is to be given reasonable and adequate opportunities as the assessment is proposed to be used against his interest. 7.04. In the instant case, there is no personal hearing and it is an assessment on non-examination of the records before imposing the penalty etc. 7.05. The jurisdiction which can be assumed by taxing authority under Section 16 of the Act is conditioned by the fact that it must be found that the whole or any part of the turnover of business of a dealer has for any reason escaped assessment to tax. The stress is upon the primordial requirement which would vest jurisdiction on the assessing authority, namely, escapement of turnover. “Turnover” is not a word of art, but it is defined in the Act itself as meaning the aggregate amount for which goods are bought or sold, or supplied or distributed, by a dealer, either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration. Unless, therefore, the record discloses or a reasonable conclusion is plausible that an amount which is characterized as “turnover” would fit in with a commercial activity, which naturally involves a sale, supply or distribution, then such an amount cannot rightly be characterized as “turnover” would fit in with a commercial activity, which naturally involves a sale, supply or distribution, then such an amount cannot rightly be characterized as “turnover” and much less “escaped turnover”. 7.06. In a case where personal hearing was sought for and it was not given but orders were passed, the said order has to be set aside. Normally, the order under the Act adversely affected the petitioner and he should have a reasonable opportunity of hearing. It is based on the Principle of natural justice. 7.07. In K. Lakshmanaswami Chettiar and Sons v. State of Tamil Nadu (supra), this Court was pleased to observe as follows: “The Board has not considered as to whether the levy of penalty was actually called for on the facts therein, as the Board is purely restricted to the consideration of the question of limitation. The question of merits of the assessment as well as the correctness of levy of penalty must be considered. The question of merits of the assessment as well as the correctness of levy of penalty must be considered. Therefore, this Court was pleased to observe that though, there is no limitation the order impugned was set aside and remitted the same to the Commissioner to consider the appropriate addition to the turnover, including the levy of penalty.” 7.08. In the instant case on merits, the assessing authority has not checked the books of accounts in order to establish the case of escapement of turnover. Without perusing and verifying the books of accounts, the assessment of escapement of turnover is not sustainable. Therefore, in my considered opinion, the petitioner is entitled to succeed on this ground, and it is on merits. 7.09. Thus, it is seen that excepting for conjecture, opinion and surmise, on which alone the impugned order of assessment is based, there does not appear to be any clinching or acceptable material through record for taxing authority to come to the conclusion that there has been an escapement of turnover. 7.10. Thus, the respondent is at liberty to examine the books of accounts in order to arrive at whether it is a case of escapement of turnover or not. 7.11. The petitioner is directed to produce all the books of accounts for the year 1998-99 before the respondent within four weeks from the date of this order and thereafter within four weeks, the respondent is directed to examine the books of accounts, after hearing the petitioner and pass appropriate orders. This entire process must be completed in eight weeks. If the petitioner indulges in any delay tactics the respondent is at liberty to proceed against him after the expiry of eight weeks as per rules and the petitioner shall not be permitted to question the same in future as the petitioner is inviting the litigation to evade tax. Hence petitioner is expected to be prompt and co-operate. 7.12. With the above observations, the impugned order is set aside and the writ petition is allowed. No costs. Consequently, the connected W.P.M.P. is closed.