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TMI Blog1964 (10) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ted into sub-section (3). The order of assessment beyond three years must, according to this view, be quashed on the ground of its being without jurisdiction. Capoor, J., without going further merely held that the impugned assessments being on best judgment basis had to be made within three years. Pandit, J., gave a dissenting judgment holding that there was no need of importing limitation of three years for completing the assessment under sub-section (3) of section 11 from sub-sections (4), (5) and (6); according to him all that section 11(4) requires is that the Assessing Authority must proceed to assess within three years mentioned therein and it is not necessary that final order should actually be passed within a period of three years. It may be mentioned that this reference had been necessitated because of conflicting Bench decisions on the true scope of the ratio of the decision in Madan Lal Arora's case(1). The two Bench decisions mentioned by the Full Bench which took divergent views are Nathu Ram Nohar Chand v. The State of Punjab[1963] 14 S.T.C. 311; 1962 Ct. L.J. (Punj.) 325. and Avtar Singh Ranjit Singh v. The Assessing Authority (Excise Taxation Officer), Ludhiana[19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire field was considered to be open to the Assessing Authority to compute the figures of turnover on the basis of its own estimate. The respondent's learned counsel has laid great stress on this judgment and has submitted that this is practically on all fours with the case before me and I should follow it, leaving it to the petitioner to go up on appeal. On the other hand, the petitioner's learned counsel has submitted that this judgment is also the subject-matter of a Letters Patent Appeal. But this apart the petitioner's learned counsel has also drawn my attention to another recent Bench decision of this Court decided on 19th February, 1964, by Bedi and Shamsher Bahadur, JJ., in Rattan Di Hatti v. The Excise and Taxation Officer. Ludhiana[1964] 66 Punj. L.R. 626., where the head note in the Supreme Court judgment as reported in Ghansyamdas' case(1) has been held to be somewhat misleading and the ratio of the Full Bench decision in Rameshwar Lal Sarup Chand's case[1964] 15 S.T.C. 932. followed. It, however, appears that the attention of the Bench was not drawn to the earlier Bench decision in the case of Kushi Ram Behari Lal[1964] 15 S.T.C. 165. nor to the Single Bench decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Taxation Officer[1964] 15 S.T.C. 932. This writ petition was again placed before me for disposal in August, 1964, and my attention was drawn to conflicting decisions of this Court on the ratio of the Supreme Court's decision in Madan Lal Arora v. Excise and Taxation Officer[1961] 12 S.T.C. 387., thereby tending to shake to some extent the binding authority of the majority view of the Full Bench in Rameshwar Lal Sarup Chand's case[1964] 15 S.T.C. 932. As a matter of fact this was due to some observations in a later decision of the Supreme Court in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax[1963] 14 S.T.C. 976; A.I.R. 1964 S.C. 766. It was in these circumstances that on 21st August, 1964, I considered it desirable that the conflict be settled by a larger Bench. The facts so far as relevant for our present purpose are briefly stated as follows: The petitioner partnership firm of Amritsar registered under the Indian Partnership Act, claims to be a registered dealer under the Central Sales Tax Act No. 74 of 1956 (hereinafter called the Central Act). For the year 1957-58 ending 31st March, 1958, the firm filed returns in respect of inter-State trade in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. Against the order of assessment an appeal was preferred by the petitioner-firm before the Deputy Excise and Taxation Commissioner, Jullundur, the Appellate Authority, under section 20 of the Punjab Act, but since the tax assessed has to be paid before the hearing of the appeals this remedy has been described by the petitioner to be illusory. It is on these allegations that this Court has been approached under Articles 226 and 227 of the Constitution and the only question raised in these proceedings is whether the impugned assessment could be made after the expiry of three years from the end of the respective periods of submitting the returns. In the respondent's return in opposition, it has been pleaded that as the proceedings for assessment had been initiated well in time, it was within the jurisdiction of the Assessing Authority to frame assessment under section 9(3) of the Central Act read with section 11(3) of the Punjab Act on the basis of the returns furnished by the dealer. The notice issued on 13th October, 1961, has also been pleaded to be in continuation of the previous ones and, therefore, not hit by any provision as to limitation. Here, it may be pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied that any dealer has been liable to pay tax under this Act in respect of any period but has failed to apply for registration, the Assessing Authority shall, within three years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess to the best of his judgment, the amount of tax, if any due, from the dealer in respect of such period and all subsequent periods and in cases where such dealer has willfully failed to apply for registration the Assessing Authority may direct that the dealer shall pay by way of penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount. * * * * Form S. T. XIV, which is the prescribed form mentioned in sub-section (2) may also, so far as material, be reproduced at this stage: "FORM S. T. XIV. NOTICE UNDER SECTIONS 11 AND 14 OF THE PUNJAB GENERAL SALES TAX ACT, 1948. (See Rules 31 and 33 of the Punjab General Sales Tax Rules, 1949). Officer of the Assessing Authority, .....District. To ----------------------------------------------------------- ----------------------------------------------------------- ----------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us that in the face of the decision of the Supreme Court in Ghanshyamdas' case[1963] 14 S.T.C. 976. such a contention is no longer open to him. The result, therefore, is that both sides are agreed on this point and we are not called upon to express our considered opinion on this question. The sole contention pressed before us by the petitioner's learned counsel is that if the Assessing Authority desires to make the best judgment assessment he must proceed to assess to the best of his judgment within three years after the expiry of the period of the returns furnished by the registered dealer. For this argument, he has relied on the language of section 11(4) of the Punjab Act, which, according to the counsel, is clear and unambiguous, admitting of no other construction. According to his contention, whenever a question is raised as to whether or not the Assessing Authority has proceeded within the prescribed time to assess to the best of his judgment, the onus would be on the authority to establish it by reference to the record. On behalf of the Assessing Authority, on the other hand, it has been strenuously argued that once assessment proceedings begin, there is no time-lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f each case, but, according to the petitioner, in the case in hand, the respondent has not yet proceeded to so assess the dealer. It has, however, not been specified by the learned counsel as to what kind of step or act by the Assessing Authority would in law suggest that from that precise point of time he should be taken to proceed to make the best judgment assessment. The submission most seriously pressed on behalf of the petitioner is that it is for the Assessing Authority to show affirmatively from the record that he did actually proceed to so assess within the period provided by the statute. The respondent has in reply submitted that law does not prescribe any particular form of notice or even information to be given to the registered dealer by the Assessing Authority for proceeding to assess to the best of his judgment and it is a matter for the authority alone to determine as to when he makes up his mind that on account of failure on the part of the registered dealer he should proceed to assess to the best of his judgment. The statute, it is pointed out, gives no guidance in this respect and it is a matter for determination in each case as to at what precise point of time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition in accordance with law and in the light of the observations made above. Costs of the hearing before the Full Bench would be costs in the cause. FALSHAW, C.J-I agree. CAPOOR, J.-I agree. GROVER, J.-I also agree. MAHAJAN, J.-I agree. The petition finally came on for hearing before Mahajan, J., and the learned Judge passed the following order on 2nd November, 1964. Order For orders see Civil Writ No. 154 of 1962. The order in Civil Writ No. 154 of 1962 is as follows: Bhagirath Dass, for the petitioner. D.S. Nehra, for the respondent. This order will dispose of Civil Writ No. 154 of 1962 and Civil Writ No. 169 of 1962. The parties to these petitions are different but the point that requires determination is the same. In Civil Writ No. 154 of 1962 the facts are as follows: The assessment year in question is the year 1957-58 ending the 31st of March, 1958. Notice under section 11(2) of the East Punjab General Sales Tax Act was issued on the 30th of May, 1958. It appears that no further proceedings in this connection were taken till the 17th of October, 1961, when a memorandum annexure "A" was issued. The memorandum annexure "A" reads thus"This is in contin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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