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TMI Blog1988 (5) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... s common questions of fact and law arise in these petitions and a common set of arguments has been advanced at the Bar, we proceed to dispose of all these writ petitions by a common judgment. The petitioner No. 1, a public limited company, has its factory at Ganaur within the District of Sonepat in Haryana State and petitioner No. 2 is its general manager (legal) and duly constituted attorney. Petitioner No. 1, a manufacturer of electric resistance, welded steel tubes and pipes, is a dealer registered under the Haryana Act as also under the Central Sales Tax Act. It filed returns for all the quarters covered within the period indicated above as prescribed by the Punjab General Sales Tax Act, 1948 (hereinafter referred to as "the Punjab Act") till 31st March, 1973 and under the Haryana Act for the quarters of the remaining years in question as the Haryana Act came into force with effect from 5th May, 1973. On the receipt of notice relating to assessment years 1968-69, 1969-70, 1970-71, 1971-72, 1972-73 and 1973-74 in the prescribed form ST- XIV under section 11(2) of the Punjab General Sales Tax Act and in the prescribed form ST-25 under section 28(2) of the Haryana Act relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the best of the Assessing Authority's judgment. The five sub-sections of section 28 thus deal with four different situations: Sub-section (1) authorises the making of assessment on the basis of returns without anything more; Sub-sections (2) and (3) deal with one particular situation, namely, when the Assessing Authority looks for evidence and supporting material, he calls upon the dealer to appear and produce his accounts and on the basis of such material he is to complete the assessment; Sub-section (4) deals with the situation where there is failure of compliance with the notice under sub-section (2) and this provision enjoins upon the Assessing Authority to complete the assessment, according to the best of his judgment, within a period of five years; Sub-section (5) deals with the situation where no return is filed. For each of these years under consideration, that is, either under section 11(2) of the Punjab Act or under section 28(2) of the Haryana Act, notice has been issued by the assessing officer. The assessing officer in his affidavit has made it clear that assessments for these years were intended to be completed following the procedure in sub-sections (2) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub- section (2) of either section 11 or section 28 of the relevant Acts, having already issued and final orders of assessment having not been made, assessment proceedings are still pending. In Madan Lal Arora v. Excise and Taxation Officer [1961] 12 STC 387 (SC), a five-Judge Bench was examining the question of limitation in respect of a best judgment assessment. At that time, section 11 of the Punjab Act had a time-limit of three years within which the best judgment assessment had to be completed. Now that period of limitation in section 28(4) is of five years. In view of what we have already noted, consideration of the procedure for best judgment assessment is not relevant. Nor are we concerned with the examination of the view taken by the Full Bench of the Punjab and Haryana High Court in Jagat Ram Om Parkash v. Excise and Taxation Officer [1965] 16 STC 107. Therein, the examination was with reference to the provisions in section 11(4) of the East Punjab General Sales Tax Act, 1948 and the question of the time- limit for completion of a best judgment assessment was in issue. The court pointed out that as to at what point of time the assessing officer did actually proceed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a case, also an effective step such as issuance of a notice to the dealer concerned showing that the Assessing Authority is proceeding to assess has got to be taken within five years of the expiry of the period concerned. Sub- section (6) is attracted in the case of a dealer who being liable to pay tax under the Act has failed to apply for registration. Similar steps as the ones to be taken under sub-section (5) are to be taken under sub-section (6) within a period of five years after the expiry of the concerned period. But the legislature advisedly did not fix any period of limitation for taking up of the steps or the passing of the assessment order under any of the sub- sections (1), (2) or (3). The reason is obvious. Best judgment assessments in the circumstances mentioned in any of the sub-sections (4), (5) or (6) could not be allowed to be made after the expiry of a certain reasonable time which the legislature thought was three years previously but made it five years by Punjab Act 28 of 1965. But where a registered dealer has filed the return, the Assessing Authority can pass the assessment order under sub-section (1) and accept the return filed by the dealer as correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given. The question that fell for determination before the court did not require examination as to whether such a notice was necessary. In view of the position as has emerged in the matter before us, we also do not think it necessary to finally indicate as to whether such a notice has to be issued and failure to issue such a notice would prevent the assessing officer from making a best judgment assessment. Though we are of the opinion that such a notice is not a statutory prescription, we do not intend to say anything more about it as judicial propriety would require a larger Bench of the court to examine the correctness of the view in the Indian Aluminium case [1977] 39 STC 19 (SC); [1977] 1 SCR 716. On an appropriate occasion, we hope the question as to whether such a notice is a condition precedent to completion of assessment would be examined. In Indian Aluminium case [1977] 39 STC 19; [1977] 1 SCR 716 this Court has approved the earlier decision in Gurbaksh Singh v. Union of India [1976] 37 STC 425; [1976] 3 SCR 247. The ratio in Gurbaksh Singh's case [1976] 37 STC 425 (SC); [1976] 3 SCR 247 is that in the absence of a period provided by statute for completion of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hand, if no assessment is made an anomalous situation might arise and even though the assessee has collected the sales tax on its sale turnover, it might raise a claim for refund of it in the absence of an assessment. We do not propose to create such a situation. It would suffice to say that in the situation which has arisen in the matter before us, it would be appropriate to call upon the Assessing Authority to complete all these pending assessments within a total period of four months from today on the basis of available material in the record before him and such other material as the authority may obtain. We, however, make it clear that such assessment has to be only under section 11(3) of the Act. Before we part with the case, we would like to indicate that assessment of tax should be completed with expedition. It involves the revenue to the State. In the case of a registered dealer who collects sales tax on behalf of the State, there is no justification for him to withhold the payment of the tax so collected. If a timely assessment is completed, the dues of the State can be conveniently ascertained and collected. Delay in completion of assessment often creates problems. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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