TMI Blog2009 (5) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... 11(4), is wholly unsustainable and is liable to be rejected. Accordingly, the first question is liable to be answered against the dealer-petitioner and in favour of the Revenue. The scheme of the Act as well as that of the Rules would show that the power vests in the Assessing Authority in specific cases to fix a different return period. In that regard reference may be made to rules 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. - - - - - Dated:- 8-5-2009 - KUMAR M.M. AND BHALLA H.S. , JJ. The judgment of the court was delivered by M.M. KUMAR J. At the instance of the dealer-assessee, this court, vide order dated April 15, 1996, directed the Sales Tax Tribunal, Punjab (for brevity, the Tribunal ), to refer the following questions of law for determination by this court, which have emerged from the order dated January 21, 1994, passed by the Tribunal in Appeal No. 505 of 1989-90 in respect of assessment years 1980-81: (i) Whether, on the facts and circumstances of the case, the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this court (annexure E). The Tribunal declined the application vide order dated April 3, 1995, against which the dealerassessee approached this court for directing the Tribunal to draw up the statement of the case and refer the questions of law arising out of the order dated January 21, 1994. The Tribunal in compliance with the direction issued by this court vide order dated April 15, 1996, has referred the aforementioned question of law for opinion of this court. The view of the Tribunal is discernible from the following extracted position, which reads thus: 5. . . . The assessment framed by the Assessing Authority is fully justified in this case as it is based on the material available on record which was confronted to the appellant during assessment proceedings and the appellant failed to explain the vast variation in the purchase and sale of finished goods as well as rolling material. As per record the variation stood fully established and the gross turnover has been enhanced to the limited extent which has been found between the purchases and sales of finished goods only and no adverse view has been taken in so far as the variation in the purchase and sale of rolling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing authority shall, after hearing such evidence as the dealer may produce, and such other evidence as the assessing authority may require on specified points, assess the amount of tax due from the dealer. (4) If a dealer having furnished returns in respect of a period, fails to comply with the terms of notice issued under sub-section (2), the assessing authority shall within five years after the expiry of such period, proceed to assess to the best of his judgment the amount of the tax due from the dealer. (5) If a dealer does not furnish returns in respect of any period by the prescribed date, the assessing authority shall within five years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess to the best of his judgment, the amount of tax, if any, due from the dealer. (6) to (9) . . . It is pertinent to mention that section 11 along with various subsections, as it stood before 1998, has been noticed above. That section was subject to comprehensive amendment in the year 1998 and for the purpose of this case we are not concerned with the amended provisions. The questions of law, as referred, have also bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-section (5) the cases of such dealers who have not filed returns, have been dealt with and the Assessing Authority is required to pass orders within five years of such period after giving the dealer a reasonable opportunity of being heard. The other sub-sections are not relevant for the purposes of answering the questions of law raised. The attempt of learned counsel for the dealer-petitioner is to bring the case within sub-sections (4) and (5) of section 11 of the Act so as to succeed in arguing that it was best judgment assessment because therein maximum period of five years has been specified where a dealer after filing of return has failed to comply with the terms of notice issued under subsection (2). However, numerous attributes of sub-sections (2) and (3) show that a return is required to be filed by the dealer and in order to finalise the assessment, his presence or production of evidence to prove that the return was correct and complete, according to the Assessing Authority is required. A notice is required to be then served on such dealer. The facts of the present case shows that not only the returns were filed and notice was issued but the dealer-peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of or before, delivery thereof. . . . S. 5. Rate of tax. (1) . . . (1A) The State Government may by notification direct that in respect of such goods other than declared goods and with effect from such date as may be specified in the notification, the tax under sub-section (1) shall be levied at the first stage of sale thereof, and on the issue of such notification the tax on such goods shall be levied accordingly: Provided that no sale of such goods at a subsequent stage shall be exempt from tax under this Act unless the dealer effecting the sale at such subsequent stage furnishes to the assessing authority in the prescribed form and manner a certificate duly filled in and signed by the registered dealer, from whom the goods were purchased: 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 under sub-section (1) of section 11 of this Act, the certificate referred to in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such a sale to a registered dealer, a declaration, in the prescribed form and duly filled and signed by the registered dealer to whom the goods are sold is furnished by the dealer claiming deduction; (vii) Such other sales or purchases as may be prescribed; (b) The amount of sales tax included in the gross turnover. According to the provisions of section 2(i), the expression turnover has been defined to include aggregate of the amount of sales and purchases and parts of sales and purchases actually made by any dealer during the given period, less any sum allowed as cash discount and trade discount, etc. Likewise clause (a) of sub-section (2) of section 5 of the Act specifies various items for which deduction is allowed. However, it is pertinent to notice that in the second proviso to section 5(1A) and second proviso to section 5(2)(ii) the expression year has been used, which in turn has been defined by section 2(j) of the Act to mean the financial year . The unit of assessment is not quarter but is the financial year whereas quarterly returns are required to be filed by the dealer. It is pertinent to notice that rule 20 of the Punjab General Sales Tax Rules, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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