TMI Blog1970 (5) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... carried on business during the assessment year 1957-58. On 11th March, 1959, and again on 20th May, 1959, two notices were issued by the Sales Tax Officer purporting to be under rule 41(5) of the U.P. Sales Tax Rules. They were followed by a third notice dated 2nd November, 1960. The firm having been dissolved, all the notices were served, it is said, by affixation to the last known place of business. On 1st December, 1960, the Sales Tax Officer made an ex parte assessment order, purporting to be under rule 41(5). The assessment order was set aside in appeal and the case was remanded for fresh assessment. The assessee applied in revision and contended that the entire assessment proceeding should have been annulled and the remand order was contrary to law. The revision application was allowed by the Additional Judge (Revisions) Sales Tax. The Additional Judge (Revisions) held, relying upon Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax[1963] 14 S.T.C. 976 (S.C.)., that as no return had been filed by the assessee it was a case where the turnover had escaped assessment and, therefore, the proceeding lay under section 21 of the Act. In adopting this view, the Additional J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) or under any other provision of this Act shall be made for any assessment year after the expiry of four years from the end of such year: Provided that where the notice under sub-section (1) has been served within such four years the assessment or reassessment to be made in pursuance of such notice may be made within one year of the date of the service of the notice even if the period of four years is thereby exceeded: Provided further that nothing contained in this section limiting the time within which any assessment or reassessment may be made shall apply to an assessment or reassessment made in consequence of, or to give effect to, any finding or direction contained in an order under section 9, 10 or 11. Explanation.-Where the assessment proceedings relating to any dealer remained stayed under the orders of any civil or other competent court, the period during which the proceedings remained so stayed shall be excluded in computing the period of limitation for assessment provided under this sub-section." The contention on behalf of the Commissioner of Sales Tax is that as the assessee had failed to submit its return of turnover for the assessment year 1957-58, the turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if assessment proceedings are already pending but where the dealer has failed to file his return and no proceeding for assessment has been initiated by the assessing authority, it may be said that turnover has escaped assessment. In that event, the Supreme Court observed, recourse to section 11-A was permissible provided the proceeding was taken within limitation. This case was followed by Anandji Haridas and Co. (P.) Ltd.[1968] 21 S.T.C. 326 (S.C.). The question there was whether section 11(4)(a) of the C.P. and Berar Sales Tax Act, 1947, contravened article 14 of the Constitution. The Supreme Court pointed out that as the dealer had not filed his return, turnover had escaped assessment and it was open to the assessing authority to treat the case either under section 11(4)(a), which prescribes no period of limitation for completing the assessment, or under section 11-A which provides a period of limitation in that behalf. A case of escaped turnover, the court observed, fell under both section 11(4)(a) and section 11-A and, therefore, could be considered under either provision, but as a proceeding taken under section 11(4)(a) was not circumscribed by any bar of limitation while a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 14 S.T.C. 976 (S.C.). and Anandji Haridas and Co. (P.) Ltd.[1968] 21 S.T.C. 326 (S.C.)., we must hold that on the failure of the assessee to furnish his return, the turnover "escaped " assessment and it was open to the Sales Tax Officer to proceed either under section 7(3) or under section 21, and that when he proceeded under section 7(3) and made an assessment he acted within his jurisdiction. The assessment made under section 7(3) cannot be considered as made under section 21. Upon this, it would seem that the question referred in this case stands disposed of. In M/s. Kishan Lal Gopi Krishna v. Commissioner of Sales Tax(3), this court proceeded on the assumption that "escaped" turnover can be assessed only under section 21 and that section 7(3) does not contemplate an assessment proceeding in respect of "escaped" turnover. It was said, therefore, by Desai, C.J., that the two provisions were quite distinct from each other and were enacted to apply in mutually exclusive circumstances. That decision was rendered before either Ghanshyamdas(1) or Anandji Haridas and Co. (P.) Ltd.Sales Tax Reference No. 397 of 1961 dated 30th July, 1963. was decided by the Supreme Court and some of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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