ivil Appeal Nos 415 and 962 of 1976
Appeals by Special Leave from the Judgment and Orders dated 2 3 1976 and 21 7 1976 of the Punjab  Haryana High Court in Civil Writ Petition Nos 561 and 1961 of 1976 respectively
ST Desai Talat Ansari and Shri Narain for JB Dadac hanji for the Appellants in both appeals
718 MC Bhandare and RN Sachthey for the Respondents in both appeals
The Judgment of the Court was delivered by UNTWALIA J
In these two appeals by special leave a common question of law falls for our determination hence they have been heard together and are being disposed of by this judgment
The Indian Aluminium Cables Ltd appellant No 1 in both the appeals has got its factory at Faridabad in the State of Haryana
It sells and supplies aluminium cables to several State Electricity Undertakings or Boards situated in the various States
In respect of the assessment year 1962 63 the Company raised a dispute that it was not liable to pay Central Sales Tax under the  as it claimed to be exempt from inter State tax on the sales of its products to the various State Undertakings or Boards by reason of the provisions contained in section 5 2aiv of the Punjab General Sales Tax Act 1948 hereinafter referred to as the Act
The Tribunal decided the matter in favour of the assessee Company but the High Court of Punjab and Haryana answered the Sales Tax Reference made at the instance of the Revenue against the assessee
The decision of the High Court is reported in The State vs Indian Aluminium Cable Ltd Faridabad1
The matter was brought to this Court in appeal and by a decision given on April 2 1976 the view of the High Court was af firmed and it was held that the sales were not exempt from tax generally within the meaning of section 82A of the Central Act read with section 52aiv of the Punjab Act
The decision of this Court is reported in Indian Aluminium Cables Ltd and another vs State of Haryana2
The period of assessment concerning the appellant is each quarter of the year
In respect ofall the 8 quarters of the years 1969 70 and
1970 71 Returns were filed by the Company in time ie on or before the last day of the month following the quarter concerned
The Assessing Authority did not accept the Returns and issued notices on May 22 1970 under section 11 2 of the Act in respect of the 4 quarters of 1969 70 requiring the assessee Company to pro duce evidence in support of the Returns
Since the ques tion of assessee s liability to pay Central Sales Tax was pending in reference before the High Court the matter was not pursued by the Assessing Authority and as per the re quest of the assessee it was kept pending
Even though the High Court decision was given on November 5 1973 the matter became subjudice in appeal filed in this Court
It appears that the matter of assessment in respect of the year 1969 70 was taken up by the Assessing Authority again by issuance of a notice on September 15 1975
Thereupon the Company filed Civil Writ Petition No 5611976 in the High Court on January 27 1976 to quash the notice dated Septem ber 15 1975 and to restrain the State
of Haryana and its Officer the Excise and Taxation Officer Faridabad from proceeding with the assessment
It is said that in respect of the 4 quarters of the 2 38 STC 108 719 year 1970 71 notices under section 112 of the Act were issued for the first time by the assessing authority on January 30 1976
Thereupon the Company filed in the High Court Civil Writ Petition No 19611976 for reliefs simi lar to the ones asked for in the other writ petition
According to the appellant in the first writ petition were raised before the High Court the two main questions in the following terms i Whether the assessment proceedings with regard to assessment year 1969 70 could be proceed ed with and whether assessment order could be passed beyond a period of 5 years after the expiry of the period to which the assessment relates
In other words whether the Sales Tax Officer had jurisdiction to make assessment for the assessment year 1969 70 which had become time barred ii Whether Central Sales Tax was payable in respect of sale of electric cables manufactured and sold by the petitioner Company to State Electricity Boards in view of the exemption granted generally under section 82A of the read with section 5 2 a iv of the Punjab General Sales Tax Act 1948
This writ petition was dismissed in limine by a Bench of the High Court stating Reply has been filed
The matter is covered in favour of the respondent by 33 STC 152
Dismissed
It appears by the time the second writ petition came to be filed the appellant s liability to pay Central Sales Tax was decided by this Court in the case referred to above
Therefore in the second writ petition in the main the question raised was one of limitation as in the other writ petition
Another Bench of the High Court dismissed this writ petition in limine on July 21 1976
In substance and in effect in spite of the Full Bench decision by the majority of the High Court in the case of Rameshwar Lal Sarup Chand vs Shri US Naurath Excise  Taxation Officer Assessing Authority Amritsar and Another1 on which Mr ST Desai learned counsel for the appellant heavily relied upon before us neither Bench found any substance in the point of limitation raised by the Company and dismissed the two writ petitions in limine
In our opinion the High Court was right for the reasons to be stated hereinafter in this judgment in not entertaining the point of limitation in spite of the full Bench decision aforesaid as the said decision in view of many pronouncements of this Court to be alluded to hereinafter is no longer good law
In face of the decision of this Court in Indian Alumini um Cables Ltd  Anr
vs State of Haryana supra the ques tion of the appellant s tax liability under the was not reagitated before 1 15 STC 932
720 US
Learned counsel for the appellant however strenuously urged that the assessing authority could not assess the tax payable by the appellant on expiry of the period of 5 years from the end of each quarter
The 4th quarter of the year 1969 70 expired on March 31 1970 and the period of 5 years having expired on March 31 1975 no assessment could be made thereafter
In relation to the year 1970 71 even the notice for the first time was issued under section 11 2 of the Act after the expiry of the period of 5 years in relation to the first three quarters although it was within time apropos the last quarter
The period of the last quar ter expired on March 31 1971 but no assessment could be made according to the appellant s counsel even in regard to the assessment year 1970 71 in respect of any quarter on the expiry of the 5 years  period reckoning from the last date of the quarter
Mr MC Bhandare learned counsel for the respondents submitted that although a time limit had been  fixed in sub sections 4 5 and 6 of section 11 of the Act no time limit was fixed by the Legis lature for actions and orders to be taken and passed under sub  sections  1   2  and  3 
Counsel therefore urged that neither the issuance of any notice under section 11 2 of the Act was beyond any period of time nor was the assessing authority under any disability of any period of limitation in passing the final order of assessment in respect of any of the quarters in question
The alternative submission of Mr Desai that in any view of the matter notice had to be issued under section 11 2 and assessments had to be completed under section 11 3 within a reasonable time was also refuted by Mr Bhandare
It is beyond any dispute and debate that under section 10 of the Act read along with the Rules framed thereunder Return has to be filed by a dealer for each quarter by the last day of the following month of the quarter and admitted sales tax as per the Return has also got to be deposited and challan filed along with the Return
It will be seen hereinafter from the authoritative pronouncements of this Court that the mere statutory liability of a dealer to file the Return or to pay the tax has not the effect of commence ment of any proceeding under the Act
If a dealer does not file a Return being liable to pay tax then action under sub section 5 or sub section 6 as the case may be has to be taken by the Assessing Authority within the period of 5 years prescribed therein
The expression proceed to assess in those two sub sections as also in sub section 4 means taking some effective step towards proceeding to make the best judgment assessment in accordance with the sub section which may be applicable
In a given case action may be taken under section 11 A 1  of the Act treating the case as a case of escaped assessment within the meaning of said section
But the assessing authority has got to
pro ceed to assess or reassess within 5 years following the close of the year for which the turnover is proposed to be assessed or reassessed
But in a case where the assessee has filed the Return the proceeding under the Act commences on the filing of the Return
If the Assessing Authority is satisfied without requiring the presence of dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete he shall assess the amount of tax due from the dealer on the basis of such returns as provided for in section 11 1 
The assessment under sub section1 can be made at any time even 721 according to the Full Bench decision of the Bombay High Court in Bisesar House vs State of Bombay and Others1 followed in Rameshwar Lal Sarup Chand3
But the view of the Bombay High Court on a consideration of the similar provisions of the other State Statutes that a notice under sub section 2 must be issued within the period of limita tion mentioned in other sub sections of section 11 or sec tion 11 A no longer holds good
A notice under sub section 2 requiring the dealer to produce evidence can be issued at any time after the filing of the Return
The expectancy of taking steps without any undue delay and within a reasonable time is an expectancy of prudence
But legally the action cannot be nullified merely on the ground of delay in the issuance of the notice under section 11 2
Sub section 3 of section 11 says  On the day specified in the notice or as soon afterwards as may be the Assessing Authority shall after hearing such evidence as the dealer may produce and such other evidence as the Assess ing Authority may require on specified points assess the amount of tax due from the dealer
On a correct interpretation of the provision afore said what emerges as follows  i That the Assessing Authority shall hear the evidence produced by the dealer on the day speci fied in the notice issued under sub section 2
ii It can adjourn the hearing to some other day and hear the evidence produced by the dealer on the adjourned day or days
iii The Assessing Authority may require the dealer to produce further evidence on specified points on the adjourned day or days
iv The Assessing Authority should assess the amount of tax due from the dealer that is to say pass the order of assessment on the day on which the
hearing of the evidence is completed or as soon afterwards as may be
the last phrase is absent in some of the similar statutes
It therefor may be open to argument whether the assessment order passed under section 113 of the Act after undue delay of the comple tion of the hearing of the evidence produced or required to be produced by the dealer is valid or not
But we are not concerned with the said ques tion in this case as on the facts and in the cir cumstances appearing relation to the assessment proceedings of either of the two years to produc tion of evidence by the assessee could not and has not start as yet because of the filing of the writ petitions and the appeals in the Court
It goes without saying that the assessing authority will be well advised to complete the assessment proceedings in question as soon as it may be possible to do so after the delivery of this judgment
1 9 STC 654
2 15 STC 932
722 Sub section 4 of section 11 is attracted in a case where a dealer having furnished a Return in respect of a period fails to comply with the terms of a notice issued under sub section 2
In such a case the Assessing Authority has to take some effective step such as issuance of a notice to the assessee intimating to him that he is proceeding to assess to the best of his judgment the amount of tax due from the dealer
On failure of a dealer to furnish a Return in respect of any period by the prescribed date the Assessing Authority after giving the dealer a reasonable opportunity of being heard can proceed to assess to the best of his judgment the amount of tax if any due from the dealer
In 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 5 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 subsection 5are to be taken under sub section 6 within a period of 5 years after the expiry of the concerned period
But the Legis lature advisedly did not fix any period of limita tion 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 regis tered 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 and complete
In such a case the formality of passing an order of assessment is to be completed without any further demand of tax from the dealer
For the issuance of a notice under subsection 2 no time limit has been fixed but the assessing authority must remain on its guard of taking the steps and completing the assessment as soon as it may be possible to do so
Other wise the risk involved may just be pointed out
Take a case where a notice under sub section 2 is issued after the expiry or just on the verge of expiry of the period of 5 years and the dealer fails to comply with the terms of the notice
In such a case the assessing authority may have to proceed to make the best judgment assessment under sub section 4 attracting the bar of limitation of 5 years
But of course there may be a case where in spite of the failure of the dealer to comply with the terms of a notice issued under sub section 2 the assessing authority may be in a position to complete the assessment under sub section 3 treating the alleged failure of the dealer as not a real failure on his part
We now proceed to discuss some of the relevant decisions on the points at issue
In Bisesar House case supra Chagla CJ delivering the judgment of a Full Bench of the Bombay High Court on a consideration of the similar provisions of section 11 of the CP and Berar Sales Tax Act 1947 applied the ratio of his decision in Commissioner of Income tax Bombay City vs Natsee Nagsee  Co1 to a case covered by 1 723 section 11 2 of the Sales Tax Act
With respect to the learned Chief Justice we say that he was not right when he said at page 669 Section 11 2 is in the substantial sense an initiation of fresh proceedings by the Commission er
It is open to the Commissioner to be satisfied with what the assessee has done and pass an order under section 11 1
But if he is not satisfied then he initiates fresh proceedings under section 112 by issuing a notice
That undoubtedly is putting the assessee to the peril of the apprehension that as a result of the notice his tax might be enhanced
If the principle we have laid down in Narsee Nagsee s case 31 ITR 164 is correct then that princi ple would undoubtedly apply to the issuing of a notice under section 112
As held by this Court in the case of Ghanshyamdas vs Regional Assistant Commissioner of Sales Tax Nagpur  others1 even the filing of a Return by a dealer is tantamount to initiation or commencement of a proceeding under the Sales Tax Act
The decision of the Bombay High Court in Narsee Nagsee s case Was affirmed by a Division Bench by majority of this Court in Commissioner of Income tax Bombay City Iv
Narsee Nagsee  Co 2
Subba Rao J as he then was delivering the majority opinion of a Constitution Bench of this Court in Ghanshyam das s case supra referring to the decision of the Privy Council in Rajendranath Mukherjee vs Income tax Commission er1 said at page 983 of 14 STC This decision is a clear authority for the position that if a return was duly made the assessment could be made at any time unless the statute prescribed a time limit
This can only be for the reason that the proceedings duly initiated in time will be pending and can therefore be completed without time limit
At page 987 says the learned Judge It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 103 or under section 112 of the Act
As rightly point ed out by Shah J as he then was at page 436 if we may say so with respect in the case of Regional Assistant Commissioner of Sales Tax Indore vs Malwa Vanaspati and Chemical Co Ltd4 section 11 2 is a typographical error in the sentence extracted above
In disapproval of the view of the Full Bench expressed in Bisesar House case supra it was reiterated at page 989 in Ghanshyamdas s case AS we have held that the submission of a statutory return would initiate the proceedings and that the proceedings would be pending till a final order of assessment was made on the said return no question of limitation would arise   
For the foregoing reason we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return
1 14 STC 976  2 3 4 21 STC 431
724 In Narsee Nagsee s case supra it has been pointed out by the majority of the Bench that a notice under section 111 of the Business Profits Tax Act 1947 must be given within the financial year which commences next after the expiry of the accounting period or the previous year which is by itself or includes the chargeable accounting period in question
vide page 317 of 40 ITR
It was also pointed out in that case that the words profits escaping assessment  in section 14 of the Business Profits Tax Act applied equally to cases where notice had been given but had resulted in no assessment and to cases where due to inadvertence oversight or any other reason no notice was given and therefore no assessment was made
This Court in The State of Punjab  Others vs Tara Chand Lajpatt Rai1 reversed the decision of the Punjab High Court in Civil Writ No 108861 and following the decision of this Court in Ghanshyamdas s case supra stated at page 501 This decision is therefore a clear authority for the proposition that assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under section 112 of the present Act and that if such proceedings are taken within the prescribed time though the assessment is fina lised subsequently even after the expiry of the prescribed period no question of limitation would arise
In the case of Tarachand Lajpat Rai supra the dealer had filed the Returns after the expiry of 30 days from the relevant date but they were not rejected by the Department on that ground
Notice under section 11 2 of the Act was issued and that also was done before the expiry of period of 3 years  as the period of limitation stood then in the other sub sections
On the authority of Ghan shyamdas s case it was held the assessment pro ceedings commenced either when the respondent firm filed the returns or in any event from the date of the said notice
Both the events therefore were within the prescribed time
 The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lal Sarup Chand supra was merely distinguished on the ground that the question decided in Ghanshyamdas s case did not come up for consideration in Rameshwar Lal s case
But we think it is high time that the decision of the Full Bench of the High Court in Rameshwar Lal s case should be clearly and expressly over ruled now
An identical view had been expressed by his Court reversing the decision of the Punjab High Court in Letters Patent Appeal No 31963 in the case of The State of Punjab and another vs Murlidhar Mahabir prasad2
The challenge before this Court in the case of Madhya Pradesh Industries Ltd vs State of Maharashtra and Others3 was whether sub section 3 of section 11A of the CP and Berar Sales Tax Act 1947 was violative of Article 14 of the Constitution
The argument was repelled and it was stated at page 402 by Hegde J 1 19 ST C
493 2 21 STC 29
3 22 STC 400
725 delevering the judgment on behalf of himself Wanchoo CJ and MitterJ This Court in Ghanshyamdas s case specifically overruled the decision of the Bombay High Court in Bisesar House case
Therein this Court held that while s11 2 deals with pending proceedings section 11A concerns itself with matters which are not pending
This Court further ruled that in the case of pending proceedings the Act has not pre scribed any period of limitation
That decision proceeds on the basis that section 11 2 and section 11A cover different fields and that they do not overlap
Bachawat J speaking for himself and Ramaswami J went a step further and in their concurring judg ment stated at page 403 There is no limitation for the issue of a notice under section 11 2
This follows from a plain reading of section 112 independently of section 11A3
Neither section 112 nor sec tion 11A3 is violative of Article 14
A notice under section 11 2 is issued in a pending pro ceeding where as a notice under section 1 I A 1  initiates a new proceeding
There is a reasona ble basis for classification and differential treatment of the notices under sections 112 and 11A1 for the purposes of limitation
 The majority opinion of the Full Bench of the Punjab High Court was delivered by two judges in the case of Rameshwar lal Sarupchandra Supra Pandit J ave a dissenting opin ion
It is wrong to say as stated by the majority that the expression proceed to assess and the word assess connote the same meaning
The ratio of the majority opinion is chiefly based upon the decision of the Full Bench of the Bombay High Court in Bisesar House s case which decision was not approved by this Court and must be deemed to have been overruled
The majority we may also point out with respect committed a mistake in appreciating the deci sion of this Court in the case of Madan Lal Arora vs The Excise and Taxation Officer  Amritsar1 Sarkar J as he then was delivering the judgment on behalf of a Constitu tion Bench of this Court adverted to the facts of the case and stated that the registered dealer under the Punjab General Sales Tax Act had filed returns for the 4 quarters of the financial year ending on March 31 1955 as also for the 4 quarters for the financial year ending on March 31 1956
In respect of each year the Sales Tax Assessing Officer served three successive notices on the dealer one on March 7 1958 the other on April 4 1958 and the third on August 18 1959
The first two notices were merely under section 112 of the Act
But in the last notice which was issued after the expiry of 3 years it was stated that on the dealer s failure to produce the docu ments and other evi dence mentioned in the notice the case would be decided on best judgment assessment basis
The dealer did not comply with any of the notices and challenged with success by a petition under Article 32 of the Constitution the right of the authorities to make a best judgment assess ment
In that connection it was 1 12 STC 387 726 pointed out that the period of 3 years mentioned in sub section 4 of section 11 of the Act had to be counted from the expiry of the period in relation to which the returns had been filed and on expiry of the said period the author ities could not proceed to make the best judgment assess ment
The third and the last notice given on August 18 1959 was taken to be a notice to the dealer that the as sessing authority was proceeding to make the best judgment assessment and since this was done more than 3 years after expiry of all the 8 quarters  in respect of the two years it was held to be without jurisdiction and the respondent was restrained from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1954 55 and 1955 56
The decision of this Court in Madan Lal Arora s1 case justifies our apprehension which we have mentioned in the beginning of our judgment to the effect that if a dealer fails to comply with the notice issued under section 11 2 of the Act then in such a case even though there may not be any time limit for issuance of a notice but on the dealer s failure to comply with it the assessing authority may be obliged to take recourse to sub section 4 attracting the bar of limitation of 5 years for proceeding to assess on the best judgment basis
The majority however was wrong when they said at page 949 of 15 STC with reference to Madan Lal Arora s case In the case before the Supreme Court two notices were within three years and the third notice was beyond three years and their Lord  ships held that the third notice beyond three years the Assessing Authority had no jurisdiction to make the assessment
If the phrase proceed to assess bears the meaning which the learned counsel for the State contends for namely that only a step towards assessment has to be taken and the assessment can be made at any time after the period of three years their Lordships would on the basis of the two notices within the period of limitation have come to a different conclusion and that is not what has been done
 This was it appears to us clearly a mistaken reading of the judgment of this Court
The majority in our opin ion was also wrong in importing the period of limitation provided in sub sections 4 5 and 6 of section 11 of the Act into sub section 3 and in holding therefore that an assessment under sub section 3 must also be completed within 3 years from the last date on which the return should be filed under the Act
We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that this Court had held in Madan Lal Arora s case that the period of 3 years had to be counted from the last date on which the return should be filed
The deci sion of the Full Bench of the Punjab High Court in the case of Ramashwar Lal s case supra is clearly erroneous and must be over ruled
Pandit J in his dissenting opinion had by and large taken a correct view in favour of the Revenue
1 12 STC 387
727 Lastly we may also make a reference to a recent deci sion of this Court delivered by one of us Untwalia J in the case of Gurbaksh Singh vs Union of India  Others1 An argument quite similar to the one advanced before us was advanced on behalf of the assessee appellant in that case before this Court
It was argued that the period of 4 years of limitation prescribed under sub section 2a of section 11 of the Bengal Finance Sales Tax Act 1941 as extended to the Union Territory of Delhi should be imported into the revisional and the appellate power of the authori ties conferred on them under section 20
This argument was repelled and it was pointed out that the legislature had not provided any period within which an order was to be made by an Appellate or Revisional authority no such period should be imported in the exercise of the power on the basis of section 11 2a
Mr Desai relied upon the penal timate paragraph of this decision in support of his conten tion that in any view of the matter notice under section 11 2 had to be issued and the assessment completed within a reasonable time
We do not accept this contention to be sound
The argument as presented cannot be accepted to be correct
In Gurbaksh Singh s case it was not stated that the exercise of the revisional power suo moto could not be made after an undue long delay
On such an assumption it was merely found as a fact that there was no undue delay in the suo moto exercise of the power
In the result we do not find any merit in the appeals
They are dismissed with costs
Hearing fee one set only
VPS Appeals dismissed


Summary:
The appellant is an inter State dealer
In respect of all the eight quarters of the years 1969 70 and 1970 71 the appellant filed returns in time
In respect of the four quarters of 1969 70 the Assessing Authority did not accept the returns and issued notices under section 112 of the Punjab General Sales Tax Act 1948 requiring the appellant to produce evidence in support of the returns
Since the question of the appellant s liability to pay central sales tax for an earlier assessment year 1962 63 was pending before the High Court the matter was not pursued by the Assessing Authority and was kept pending
After the High Court gave its decision against the appellant and while the matter was pending appeal in this Court the Assessing Authority took up the matter of assessment  for the year 1969 70 by the issue of notice in September 1975
The appellant thereupon filed writ petitions in the High Court to quash the proceedings
In respect of the four quarters of the year 1970 71 notices under section 112 were issued by the Assessing Authority on January 30 1976 and the appel lant filed writ petitions in the High Court for quashing those proceedings also
All the  writ petitions were dis missed by the High Court In appeal to this Court in view of the decision of this Court in appeal
the appellant did not agitate the question of its tax liability under the Central Sales  Tax Act
but contended that i the Assessing Authority could not assess the tax payable by the appellant on the expiry of the period of 5 years from the end of each quarter in relation to the year 1970 71 the same contention was raised even though notice under section 112 was within time apropos the last  quarter and 2 the notice under section 112 and assessment under section 113 had to be completed within a reasonable time
Dismissing the appeals HELD 1 Under section 10 of the Act read along with Rules framed thereunder the return has to be filed by a dealer for each quarter by the last day of the following month of the quarter and admitted sales tax as per the return has also got to be deposited
Where a registered dealer has filed the return the Assessing Authority can accept the return as correct and pass the assessment order under section 111 If the Assessing Authority does not accept the return he may issue notice under section 112 asking the asses see to produce evidence in support of the return
In such a case the Assessing Authority shall hear the evidence produced by the dealer on the day specified in the notice issued under sub section
2 or adjourn the hearing to some other day and hear the evidence produced by the dealer on the adjourned day or days
or may require the dealer to produce further evidence on specified points on the ad journed day or days
The Assessing Authority should under section 11 3 on the day on which the hearing of the evidence is completed or as soon afterwards as may be  assess the amount of tax due from the dealer that is pass the order of assessment
720 E H Section 114 is attracted in a case
where a dealer having furnished a return fails to comply with the terms of a notice issued under section 11 2
In such a case the Assessing Authority has to take some effective steps such as issuance of a notice to the assessee within 5 years of the expiry of the period concerned intimating to him that he is proceeding to assess the tax due from the dealer to the best of his judgment
Under section 115 on failure of a dealer to furnish a return in respect of any period by the prescribed date the Assessing Authority after giving the dealer a reasonable opportunity of being heard can within 5 717 years after the expiry of the concerned period proceed to assess to the best of his judgment the amount of tax if any due from the dealer
Sub section 6 is attracted in the case of a dealer who being liable to pay tax under the Act had failed to apply for registration
Similar steps as the ones under sub section
5 are to be taken under sub section
6 within a period of 5 years after the expiry of the concerned period
It is thus seen that for taking action under sub sections 4 5 and 6 of section 11 a time limit of 5 years has been fixed by the legislature
The reason is that best judgment assessments in the circumstances mentioned in any of the sub sections
4 5 oF 6 are fresh proceedings and could not be allowed to be taken after the expiry of a certain reasonable time which the legislature has fixed at 5 years
But the legislature advisedly did not fix any period of time for taking steps or the passing of the assessment order under any of the sub sections
1 2 or 3
Where a dealer files a return the proceeding under the Act commences and the issue of a notice under section 112 does not initiate any fresh proceedings
A notice under section 112 requiring the dealer to produce evidence can therefore be issued at any time after the filing of the return
because when once a return is duly made the assessment could be made at any time unless the statute prescribes a time limit
The ex pectancy of taking steps without any undue delay and within a reasonable time is an expectancy of prudence because where a notice under sub section
2 is issued when 5 years are about to expire and the dealer fails to comply with the terms of the notice the Assessing Authority may have to proceed to make the best judgment assessment under sub section
4 and he may not be able to do so if the period of 5 years had expired by then
722 A G Bisesar House vs State of Bombay  Others
9 STC 654 and Rameshwar Lal Sarup Chand vs US Nanrath Excise  Taxation Officer Assessing Authority Amritsar and Another 15 STC 932 overruled
Ghanshyamdas vs Regional Assistant Commissioner of Sales Tax Nagpur  Others 14 STC 976 The State of Panjab  Others vs Tara Chand Lajpat Rai 19 STC 493 The State of Punjab and another vs Murlidhar Mahabir Prasad 21 STC 29 Madhya Pradesh Industries Ltd vs State of Maharashtra and Others 22 STC 400 and Madan Lal Arora vs The Excise and Taxation Officer Amritsar 12 STC 387 followed
2 The case of Gurbux Singh vs Union of India is not an authority for the contention of the appel lant that the issue of the notice under section 112 and comple tion of assessment under section 113 should be within a reason able time
In that case it was pointed out that since the legislature had not provided any period of limitation within which an order was to be made by an Appellate or Revisional Authority the period of limitation prescribed in other sections could not be imported for the exercise of such power
It was not stated in that case that the exercise of the revisional power suo moto could not be made even after an undue long delay
It was merely found as a fact in that case that there was no undue delay in the exercise of the power
727 A D Obiter
The phrase as soon afterwards as may be  in section 113 may suggest that where assessment order under section 113 of the Act was passed after under delay after the completion of the hearing of the evidence produced by the dealer the order of assessment may not be valid
But that question does not arise in the present case
because the appellant has not yet produced any evidence