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TMI Blog1985 (8) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... C 510 wherein it has been held that there is nothing in the language of section 15 of the A.P. General Sales Tax Act, which prohibits the assessing authority from making a provisional assessment on the monthly returns beyond the 31st day of March of the year. It was observed that the expression "during the year" in section 15(1) of the Act is not to be understood as "within the year", but refers only to the instalments payable on the basis of the monthly estimated or actual turnover. Section 15(1) of the Act is in the following terms: "The tax payable under this Act for each year may be provisionally assessed in advance during the year in monthly or other prescribed instalments on the basis of estimated or actual turnover of the dealer; and for that purpose a dealer may be required to submit a return or periodical returns of estimated or actual turnover in such manner as may be prescribed." Rule 17(1) of the Rules provides that every dealer whose total turnover in a year exceeds Rs. 1 lakh and every newly registered dealer irrespective of quantum of turnover for the year in which he was registered, shall submit so as to reach the assessing authority on or before 25th day of every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1980. But it is argued on behalf of the assessee that notwithstanding the fact that if his submission is accepted no provisional assessment can be made in respect of the return for the month of March and in regard to the provisional assessment in respect of the return for the month of February, it would be difficult for the authorities to complete provisional assessment before 31st March, 1980, having regard to the clear language of section 15, the authorities are bound to complete the provisional assessment during the year in advance. Sri Krishna, therefore, submitted that the decision in Ramu & Co. v. State of A.P. [1979] 43 STC 510 (AP) is contrary to the clear terms of section 15 and ought not to be followed. The learned Judges dealing with this contention observed: "The words 'during the year', on which emphasis has been laid by the learned counsel for the petitioners, are not to be understood as 'within the year'. These words refer to the provisional assessment to be made for that year on the basis of the estimated or actual turnover of the dealer shown in form A-2. It is to enable the dealer to pay the tax in monthly or other prescribed instalments that this provision has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince us that irrespective of the decision of the Division Bench, it is possible to come to the conclusion on consideration of the relevant provisions, viz., section 14 and rules 15 to 17 that provisional assessment in respect of monthly returns can be made even after 31st of March. It is open to him to make such submissions before the Full Bench. As the entire case is being placed before the Full Bench, it is open to the assessee to urge all points arising in the case. In pursuance of the above said order of reference the case came for hearing before the Full Bench. S. Krishna, for the petitioner. The Government Pleader for Commercial Taxes, for the respondent. JUDGMENT The judgment of the Court was delivered by CHENNAKESAV REDDI, C.J.-Much ado is made again in these cases about the just and reasonable interpretation of the expression "during the year", employed in sub-section (1) of section 15 of the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the "Act"). A Division Bench of this Court in Ramu & Co. v. State of Andhra Pradesh [1979] 43 STC 510 construing the scope of section 15(1) of the Act held that there was nothing in the language of section 15, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary. (3) The tax provisionally assessed may be levied and collected, either in advance during the year in monthly or other prescribed instalments or at any time thereafter in one lump sum. " Rule 17 reads, "17. (1) Every dealer whose total turnover in a year exceeds Rs. 1,00,000 shall submit so as to reach the assessing authority on or before the 25th day of every month a return in form A-2 showing the total and net turnover for the preceding month. Along with the return he shall submit a receipt from the Government treasury or a crossed demand draft in favour of the assessing authority for the full amount of tax or taxes payable for the month to which the return relates under section 5, 5-A, 5-B, 6, 6-A, 6-B or 11 or notified under subsection (1) of section 9: Provided that in a case where a dealer intends to pay the tax through a crossed cheque, the cheque should be sent so as to reach the assessing authority on or before the 15th day of the month succeeding the month to which the tax relates. (2) The returns so filed shall, subject to the provisions of sub-rules (3) and (4), be provisionally accepted. (3) Where any dealer fails to submit a return in respect of any month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd complete, finally assess in a single order on the basis of the returns, the tax or taxes and the surcharge payable under section 5, 5-A, 5-B, 6, 6-A, 6-B or 11 or notified under sub-section (1) of section 9 for the year to which the returns relate. (6) Where any dealer fails to submit return or returns before the date prescribed in that behalf or produces the accounts, registers and other documents after inspection or submits the return or returns subsequent to the date of inspection, or if any return or returns submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall after following the procedure prescribed in rule 12 determine the turnover to the best of his judgment and finally assess in a single order the tax or taxes and the surcharge payable under section 5, 5-A, 5-13, 6, 6-A, 6-13 or 11 or notified under sub-section (1) of section 9: Provided that where the returns submitted by a dealer include the turnover or any other particulars thereof which would not have been disclosed but for an inspection of accounts, registers or other documents of the dealer made by an officer under the Act before the submission of such r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Rs. 1,00,000 shall submit so as to reach the assessing authority on or before the 25th day of every month a return in form A-2 showing the total and net turnover for the preceding month. Rule 17(2) provides that the return so filed shall, subject to the provisions of sub-rules (3) and (4) be provisionally accepted. Rule 17(3) deals with a case of dealer, who fails to submit a return in respect of any month before the date prescribed in that behalf, or produces the accounts, registers and other documents after inspection or submits a return subsequent to the date of inspection or if the return submitted is incorrect or incomplete, in which case, the assessing authority shall proceed to determine the turnover to the best of his judgment after following the procedure prescribed in rule 12 and provisionally assess the tax or taxes payable for the month and shall serve upon the dealer a notice in form B-2. The second proviso provides that if for any reason the determination of provisional assessment of tax or taxes payable for any month is not completed on or before the receipt of the return for the succeeding month or months, the assessing authority may in his discretion provisionall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld only be made during the year to which the assessment relates, that to insist on not only the assessment, but even the levy and collection of the provisional assessment having to be completed during the year appears to be a practical impossibility, and would reduce the section to a mockery, especially when the learned Judges bear in mind the fact that against an order of provisional assessment, a right of appeal is provided under section 34 of the Act, of second appeal under section 39, and perhaps even a revision under section 41. The learned judges observed: "We are concerned with the stage of collection in the instant case, in view of the provisional assessment orders evidenced by exhibits P1 and P2. We are, therefore, of the opinion that in respect of the collection of tax provisionally assessed, the limit indicated by the earlier part of the section, namely, that it should be done during the financial year, cannot and does not apply." Thus the learned Judges were only concerned with collection and held that it could be done beyond the assessment year. Yet another decision relied upon by the learned counsel is Mahendrakumar Ishwarlal & Co. v. Deputy Commercial Tax Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thly or other prescribed instalments or at any time thereafter in one lump sum. Therefore, levy and collection under sub-section (3) may be made at any time after the close of the assessment year. The word "levy", according to legal glossary, means impose or collect tax. It is wider in its import than the term "assessment". It may include both "imposition" of a tax as well as assessment. It does not extend to "collection". The Supreme Court in Assistant Collector, Central Excise v. National Tobacco Company AIR 1972 SC 2563; (1972) 2 SCC 560 dealing with the scope of the term "levy" observed: "The term 'levy' appears to us to be wider in its import than the term assessment'. It may include both 'imposition' of a tax as well as "assessment'." The learned counsel for the petitioners, however, relying on the decision of the Supreme Court in Ramji Missar v. State of Bihar AIR 1963 SC 1088 submitted that the word "may" in section 15 must be read as "shall". There, the Supreme Court was dealing with the nature and amount of discretion under section 11 (1) of the Probation of Offenders Act, which is a beneficial provision of the universal type and held: "........ the words in section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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