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TMI Blog1991 (4) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... ers had been recovered which indicated suppression of sales, under-invoicing and also taxable sales shown as tax-free sales. Consequently, the turnover of the dealer for the relevant periods was enhanced under the local as well as the Central Sales Tax Act, 1956 and some penalties were also imposed in respect of the three assessment years. The dealer took the matter in appeals before the Assistant Commissioner, Sales Tax. The Assistant Commissioner granted some relief to the dealer. Not being satisfied, the dealer filed revisions against the order of the Assistant Commissioner, which were partly allowed by the Deputy Commissioner, Sales Tax. Aggrieved still, the dealer filed second revision petitions before the Financial Commissioner under section 20 of the Act, who vide his order dated 18th November, 1971, allowed the revisions and remanded the cases to the assessing authority in the following terms: "In other words, whereas a transfer of assessment proceedings can be effected by the Commissioner, Sales Tax, on the basis of the inherent and implicit power vested in him from the record on pending cases of one assessing authority to another, such a transfer without an implicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t judgment assessment could be framed under the Central Sales Tax Act, 1956?" To answer question No. 1 it would be necessary to refer to the relevant provisions of the Act which are contained in section 11(1) and 11(2a): "11(1). If no returns are furnished by a registered or certified dealer in respect of any period by the prescribed date, or if the Commissioner is not satisfied that the returns furnished are correct and complete, the Commissioner shall proceed in such manner as may be prescribed to assess to the best of his judgment the amount of tax due from the dealer and in making such assessment shall give the dealer a reasonable opportunity of being heard; and in the case of failure by a registered or certified dealer to submit in respect of any period a return accompanied by a receipt from a Government Treasury or the Reserve Bank of India, as required under subsection (3) of section 10, by the prescribed date, the Commissioner, may, if he is satisfied that the default was made without reasonable cause direct that the dealer shall pay by way of penalty in addition to the amount of the tax so assessed a sum not exceeding one and half times that amount. (2a) No assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, while interpreting proviso to section 13(6) of the Bihar Sales Tax Act, 1947, had held that when an assessment is annulled in appeal, revision, review or reference, to be made de novo, such an assessment will be a fresh assessment and the Sales Tax Officer may have to take all the proceedings which are required for framing a fresh assessment. Where, however, the assessment has been set aside with a direction to make it in a particular manner, the Sales Tax Officer is left with no volition of his own regarding the assessment, and has to follow the directions given by the superior authority. In such a case there is no question of initiation of any proceeding or making the assessment. The assessment is already made and it is only the corrections which the assessing officer is now required to make as per direction given by the superior authority. The court held that either way where an assessment had been made on the basis of the returns filed by a dealer, or if such assessment is set aside for being made afresh, the period of limitation as laid down under the proviso to section 13(6) of the said Act will have no application. The next case to which our attention was invit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing authority to frame a "best judgment assessment" under the Act. Before we proceed to consider the controversy raised in the question, we may refer to the relevant provision of the Central Act, which is section 9: "9(1). The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter-State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of sub-section (2), in the State from which the movement of the goods commenced: Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods and being also a sale which does not fall within sub-section (2) of section 6, the tax shall be levied and collected- (a) Where such subsequent sale has been effected by a registered dealer, in the State from which the registered dealer obtained or, as the case may be, could have obtained, the form prescribed for the purposes of clause (a) of sub-section (4) of section 8 in connection w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral sales tax law of the State and the provisions of such law, enumerated in sub-section (2) of the said section shall apply to these proceedings. As is evident from the said provision that if an assessing authority has the power to make the "best judgment assessment" under the general sales tax law of the State, it has a similar power under the Central Act. Even otherwise we feel, the term "best judgment assessment" is a misnomer inasmuch as all assessments under the local Act or Central Act have to be to the best of judgment of an assessing authority, whether based on estimate or not. A "best judgment assessment" could only mean an assessment which the assessing authority has to make on the basis of facts and circumstances brought on the record by his own effort. Even so, a "best judgment assessment" does not cease to be an assessment under section 11(1) of the Act. Thus it is clear from a conjoint reading of section 9 of the Central Act and section 11(1) of the Act that a "best judgment assessment" can be made under the Central Act. The question may also to be looked into from another angle. If the contention of the dealer were correct, then a dealer could always escape h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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