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TMI Blog2009 (5) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... b and Central sales tax laws and engaged in the business of iron and steel. For the assessment year 1980-81, the dealer-assessee filed four quarterly returns with gross turnover of Rs. 1,05,65,751.20. Not satisfied with the returns, the Assessing Authority issued a notice dated March 10, 1983, in form STXIV under section 11(2) of the Punjab General Sales Tax Act, 1948 (for brevity, "the Act"). After initiating assessment proceedings, the Assessing Authority raised an additional demand of Rs. 7,26,753 including penalty of Rs. 70,000 under section 10(7) and penalty of Rs. 100 under section 23 of the Act, vide its order dated March 17, 1987 (annexure A). Against the order dated March 17, 1987 the dealer-assessee preferred an appeal before the Deputy Excise and Taxation Commissioner (Appeals), Patiala Division, Patiala, who reached the conclusion that the Assessing Authority was justified in making addition of Rs. 65,19,411.56 to the declared turnover for the purpose of assessment attracting penal action under section 10(7) of the Act. The first appellate authority also affirmed the penalties imposed under sections 10(7) and 23 of the Act. However, the case was remanded back to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord also. In my opinion, the assessment framed falls under section 11(3) as the appellant filed II and III returns also though late for which the assessing authority has taken action as provided under section 23 of the State Act and also under section 9(2) of the Central Act read with section 10(6) and 11D of the State Act. Further, the appellant has complied with the notice issued under section 11(2) as he has been appearing before the Assessing Authority and has also produced the relevant account books. Assessment has been framed by accepting returns filed and record. Even otherwise there is no addition on guess work or estimate. So, it is not best judgment assessment as held in State of Madras v. S.G. Jayaraj Nadar & Sons [1971] 28 STC 700 (SC). . ." (emphasis Here italicised.added) We have heard learned counsel for the parties and have perused the record with their able assistance. Re: Question No. (i) In order to answer the first question it would be necessary to first read the relevant provisions of section 11 of the Act, which are extracted as under: "11. Assessment of tax.-(1) If the assessing authority is satisfied without requiring the presence of dealer or the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of tax due from such a dealer on the basis of such return. The sub-section is not relevant in deciding the controversy raised. Sub-section (2) provides for a situation where the Assessing Authority is not satisfied with the filing of the return and require the presence of the dealer or production of evidence by him to prove that the returns furnished in respect of any period are correct and complete. The significant feature of sub-section (2) is that it involves the element of lack of satisfaction on the part of the Assessing Authority and the association of the dealer who had furnished the return in further proceedings before the Assessing Authority. It may also require furnishing of evidence to prove that the returns filed by the dealer in respect of any period are correct and complete. Another significant feature of the provision is that it involves issuance of a notice in the prescribed manner to such a dealer requiring him to attend in person or to produce or to cause to be produced any evidence on which such dealer may like to rely in support of such return. Sub-section (3), in fact, is the composite part of sub-section (2), inasmuch as, it provides for pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under sub-section (2) as is required by sub-section (4). The basic feature of sub-section (4) is that a dealer after filing of return has failed to comply with the terms of notice issued under sub-section (2). In other words, if there is no compliance with the terms of the notice issued under sub-section (2) then the Assessing Authority, within a period of five years, could proceed to assess to the best of his judgment, the amount of tax due from the dealer. The Tribunal has recorded a categorical finding that the dealer-petitioner "has complied with the notice issued under section 11(2) as he has been appearing before the Assessing Authority and has also produced the relevant account books. Assessment has been framed by accepting returns filed on record. Even otherwise there is no addition on guess-work or estimate. . .". The Division Bench judgment of this court in the case of Avtar Singh Ranjit Singh v. State of Punjab [1983] 52 STC 44, has no application to the facts of the instant case because in that case there were categorical findings by the Financial Commissioner showing that terms of show-cause notice were partly complied with. Therefore, the argument that the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed form as being intended for resale in the State of Punjab or sale in the course of inter-State trade of commerce or sale in the course of export of goods out of territory of India, or of goods specified in his certificate of registration for use by him in the manufacture in Punjab or any goods, other than goods declared tax-free under section 6, for sale in Punjab, or sale in the course of inter-State trade or commerce, or sale in the course of export of goods out of the Territory of India and on sales to a registered dealer of containers or other materials for the packing of such goods: Provided that in case of such sales other than those made on commission basis by a commission agent to the registered dealer a declaration duly filled up and signed by the registered dealer to whom the goods are sold and containing prescribed particulars on a prescribed form obtained from the prescribed authority is furnished by the dealer who sells the goods: Provided further that in the case of a dealer whose gross turnover does not exceed five lac rupees in a year or a sum as may be notified by the State Government from time to time in this behalf, and whose amount of tax is assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 20, 22 and 23 of the Rules. Therefore, it cannot be concluded that unit of assessment is only one quarter and not the year. The question, thus, deserves to be answered against the dealer-petitioner and in favour of the Revenue. The aforesaid question appears to have emerged from the Division Bench judgment of this court rendered in the case of Niamat Rai Milkh Raj Ahuja v. State of Punjab [1968] 22 STC 365. According to Mr. G.R. Sethi, learned counsel for the dealer-petitioner, the Division Bench while answering question No. 3 in the aforesaid case has noticed an argument of the assessee that section 5(3) as it stood then be declared violative of section 15 of the Central Sales Tax Act, 1956. The argument appears to be that section 5(2)(a) of the Act was not amended and, therefore, it was not possible to determine the taxable turnover. The Division Bench has repelled the argument by making reference to section 5(3) of the Act, which has used a non obstante clause. However, the aforesaid observation would not have any bearing because in that case the Division Bench was dealing with the question as to whether section 5(3) is violative of section 15 of the Central Sales Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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