TMI Blog1987 (9) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Act. It had submitted its return for the assessment year 1974-75 in the usual course in May, 1975. But the assessment proceedings were initiated late, in December, 1977 and went on being adjourned from time to time and were ultimately fixed to 10th March, 1978. The petitioner's stand is that it had been fully co-operating in the assessment proceedings and was not responsible for the adjournments except on a few occasions. However, on 10th March, 1978, the assessing officer instead of completing the assessment served the notice in annexure 1 under section 12(8) on the petitioner alleging that he had reasons to believe that the turnover of 1974-75 had escaped assessment, and the petitioner was called upon to appear on 10th April, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dealer. Since in another dealer's case Honourable High Court of Orissa has ordered that when notice under section 12(8) is issued even if the case is not assessed within the time-limit of three years, the case remains open for assessment, this procedure should be adopted in registered dealers case like the present one. * * *" The rest of the reply is all arguments and need not be noticed save and except the following statement which is in support of the stand of concealment or suppression: "That the opposite party humbly submits that in the present set of facts, the opposite party had information that the turnover as returned by the dealer was not correct inasmuch as they were under-stated in view of the fraud report at hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not concerned with the other provisions under which the assessing officer can proceed to assess on acceptance of the returns as correct or may assess to the best of his judgment. The second proviso to sub-section (7) prescribes the period of limitation for passing the order of assessment in these words: "Provided further that no order assessing the amount of tax due from a dealer in respect of any year or part thereof shall be passed later than thirty-six months from the expiry of the year." It is, therefore, obvious that the assessment proceeding in question was to be completed by 31st March, 1978 and not later than that. Subsection (8), which is almost in pari materia with section 147 of the Income-tax Act, 1961, covers the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in the first instance completed the regular assessment within the prescribed period of three years for which he had enough time and could have initiated the proceeding under section 12(8) within the period of limitation for completion of which no outer period was fixed. It is obvious from the language and scope of section 12(8) that it is a special provision dealing with the assessment of escaped tax even though the escapement may be the result of a mistake committed by the assessing officer himself. 7.. Let me now first consider the decision of this Court in State of Orissa v. Sri Sanatan Pathal [1973] 31 STC 632 which is the sheet-anchor of the Revenue, where, considering the said provision it is observed that the words "escaped asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t enter into the factual aspect as it was thought not necessary for answering the question. "We, therefore, hold that the expression 'escaped assessment' in section 11A of the Act includes that turnover which has not been assessed at all, because for one reason or other no assessment proceedings were initiated and therefore no assessment was made in respect thereof." It is now necessary to examine the Supreme Court case. The above observation was made, as already indicated, in a situation where the dealer had not submitted any return and on that account no assessment had been made. This will become clear from the discussions made at page 335 of the report. With due deference to the learned Judges of this Court who decided the case of Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur [1963] 14 STC 976; AIR 1964 SC 766. Considering an analogous provision in the C.P. and Berar Sales Tax Act (21 of 1947) and relying upon some earlier decisions of the Calcutta High Court and the Privy Council, the Supreme Court held that: "A turnover cannot be said to escape assessment if proceedings in respect of the first assessment were pending and no final order of assessment was made therein. A proceeding is said to be pending as soon as it is commenced and until it is concluded. Before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for the assessment was not comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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