Civil Appeal Nos 95 and 96 of 1971
From the Judgment and order dated 3rd October 1969 of the Allahabad High Court in Writ Petitions Nos 351 and 46269
section C Manchanda and o P Rana for the Appellants
Promod Swarup and section Markendeya for the Respondent
The Judgment of the Court was delivered by FAZAL ALI J
These appeals by the sales tax officer have come up to this Court by certificate of fitness granted by the High Court of Allahabad
The appeals involve a very short point turning upon the interpretation of rule 7A of the UP Sales Tax Act hereinafter referred to as the Act
It appears that the respondent is a partnership firm carrying on business in the district of Moradabad
The assessment quarters in question are two quarters of 1968
By an order dated 31st December 1968 the sales tax officer found from the 777 turn over of the firm as revealed from the quarterly returns filed by the assessee that it disclose an assessable income
The sales tax officer therefore proceeded to make a provisional assessment in respect of the portion of the assessment year concerned purporting to act under section 7A of the UP Sales Tax Act
The assessee being aggrieved by this order instead of going in appeal against the order challenging the same before the High Court praying that the sales tax officer had no jurisdiction to make a provisional assessment because the assessee had in fact filed a return
This argument appears to have found favour with the High Court which quashed the order of the sales tax officer and held that the sales tax officer could have made a provisional assessment to the best of his judgment only if no return had been filed by the assessee
Mr Manchanda appearing in support of the appeals has contended that the High Court has completely overlooked the purport ambit of section 7A of the Act which does not exclude but in fact implies the provisions of the Act including section 73
The sheet anchor of the High Court s judgment is section 73 which runs thus If no return is submitted by the dealer under sub section 1 within the period prescribed in that behalf or if the return submitted by him  appears to the assessing authority to be incorrect or incomplete the assessing authority shall after making such enquiry as he considers necessary determine the turnover of the dealer to the best of his judgment and assess the tax on the basis thereof  Provided that before taking action under this sub section the dealer shall be given a reasonable opportunity of proving the correctness and completeness of any return submitted by him
 The High Court was of the opinion that as conditions mentioned in section 73 did not apply to the facts of the present case inasmuch as it was not a case in which the assessee had not filed a return at all no assessment could have been made by the sales tax officer
In our opinion the High Court was in error in taking this view
Section 7A runs thus 1 The State Government may require any dealer to submit return of his turn over of a portion of the assessment year and the assessing authority may without prejudice to the provisions of section 7 may provisional assessment in respect of such portion of the assessment year in accordance with the provisions of this Act in so far as they may be made applicable if the turn over of the dealer as determined by the assessing authority for such portion of the amount if any specified in or notified under sub section 2 of Section 3 or sub section 2 of Section 3 D as the case may be as the period under assessment years to twelve months
19 L925SCI 75 778 2 Where the assessing authority has made a provisional assessment under sub section1 it shall not by reason of such assessment be precluded from redetermining in the turn over and making the assessment for the whole year
 This section clearly authorizes the assessing authority to make a provisional assessment in respect of the assessment year to the best of his judgment and does not contain any pre conditions at all
On the other hand it applies the provisions of the Act which includes the provisions of section 73 which is the provision that confers power on the assessing authority to make all assessment to the best of his judgment
The High Court was rather carried away by the language of rule 413 which runs thus 3 If no return is submitted in respect of any quarter or month as the case may be within the period or if the return is submitted without the payment of tax in the manner prescribed in Rule 48 the Sales Tax Officer shall after making such enquiries as he considers necessary determine the turnover Lo the best of his judgment provisionally assess the tax payable for the quarter or the month as the case may be and serve upon the dealer a notice in Form XI and the dealer shall pay the sum demanded within the time and in the manner specified in the notice


Summary:
By an order dated 31st December 1968 the sales tax officer found from the turnover of the respondent firm as revealed from the quarterly returns filed by the assessee that is disclosed an assessable income
He proceeded to make a provisional assessment in respect of the portion of the assessment year 1968 concerned purporting to act under section 7A of  the UP Sales Tax Act
The respondent challenged the same before the High Court praying that the sales tax officer had no jurisdiction to make a provisional assessment because the assessee had in fact filed a return
The High Court of Allahabad accepted the contention and quashed the order of the sales tax officer
The High Court hold that as conditions mentioned in section 73 did not apply to the facts of the case in as much as it was not a case in which the assessee had not filed a return at all no assessment could have been made by the sales tax officer
Allowing the appeal by special leave  HELD Section 7A clearly authorises the assessing authority to make provisional assessment in respect of the assessment year to the best of his judgment and does not contain any pre conditions at all
On the other hand it applies the provisions of the Act which includes the provisions of section 73 which is the provision that confers power on the assessing authority to make an assessment to the best of his judgment
It is true that sub rule 3 of rule 41 contains a provision that the provisional assessment to the best of the judgment can be made where no return is submitted but this rule has to be read as supplemental to the provisions of the parent Act
What this rule implies is that whether the return is filed by the assessee or not the assessing authority will have the power to make provisional assessment
There is no inconsistency between section 7A and rule 413 of the Rules framed under the Act
778 A B D F