Case: M. V. Narasappa Vs. Commercial Tax Officer, Kolar, and Another

actually collected during that year. 6. Every dealer not liable to submit a return under rule 12, who has a net turnover of not less than Rs. 10, 000 in any year, shall unless he has elected to be assessed by the method described in rule 20 submit to the assessing authority of the area in which his principal place of business is situated a return in Form VIII showing the actual gross and net turnover for that year and the amount by way of tax or taxes actually collected during the year on or before the 1st day of August of the succeeding year and thereafter for every year on or before the 1st day of August immediately following such year.(2) On the receipt of a return in Form VIII the assessing authority shall, if he is satisfied after such scrutiny of the accounts and such enquiry as he considers necessary that the return is correct and complete, finally assess on the basis of the return the tax or taxes payable under section 3, 5 or 11(2) or under the notification or notifications issued under section 6(1) for the preceding year. (3) If no return is submitted or if the return submitted appears to the assessing authority to be incorrect or incomplete, the assessing authority may, after following the procedure prescribed in rules 14 and 15, finally assess the tax according to the best of his judgment. (4) ............" "34. (1) If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, may, at any time within the year or the two years next succeeding that to which the tax or licence fee relates, assess the tax payable on the turnover which has escaped assessment or levy the licence fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary. (2) If for any reason any tax or licence fee has been assessed at too low a rate in any year, the assessing authority or the licensing authority, as the case may be, may, at any time within the year or the two years next succeeding that to which the tax or licence fee relates, revise the assessment or the licence fee after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary ...." 7. We have already mentioned that the assessee filed four returns for the year 1955-56, and the Commercial Tax Officer passed an assessment order. The learned counsel for the assessee contends that the Commercial Tax Officer, when he passes an order of assessment on remand, would be assessing that turnover of the assessee which had escaped assessment to tax within the meaning of rule 34. However, the matter is concluded by authority of this Court. We are here concerned with a dealer who has submitted returns and not a dealer who has not submitted a return. As far as the dealer who has submitted a return, it seems to us that no limitation is provided for making an assessment on him, and that till a final assessment order is made it cannot be said that any turnover has escaped assessment within the meaning of rule 34(1).In Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur ([1964] 4 S.C.R. 436; 14 S.T.C. 976), Subba Rao, J., as he then was, speaking for the majority, while dealing with section 11-A of the Central Provinces and Berar Sales Tax Act, 1947, observed : "On the said analogy, the assessment proceedings under the Sales Tax Act must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. 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 completed and, if completed, it might be that the entire turnover would be caught in the net." 8. He then dealt with the question : when do the assessment proceedings under the Act in respect of a registered dealer commence and when do they terminate ? He concluded thus : "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 10(3) or under section 11(2) of the Act." He then observed that a case would be pending till a final order of assessment was made by the highest Tribunal or Court under the Act. He finally concluded at page 453 : "For the foregoing reasons 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." 9. Applying the above reasoning to the facts of this case it follows that the proceedings commenced after the returns were submitted by the assessee. No final order of assessment has yet been made in regard to the said returns, and, therefore, it cannot be said that any turnover of the assessee has escaped assessment within rule 34(1) of the Mysore Sales Tax Rules, 1948.We may mention that a similar view has been taken in the later decisions of this Court in State of Punjab v. Tara Chand Lajpat Rai ([1967] 19 S.T.C. 493; A.I.R. 1967 S.C. 1408), State of Punjab v. Murlidhar Mababir Parshad ([1968] 21 S.T.C. 29) and Madhya Pradesh Industries Ltd. v. The State of Maharashtra [Civil Appeal No. 534 of 1966; judgment dated September 28, 1967; [1968] 22 S.T.C. 400].

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We heard the learned counsel for the appellant on the constitutional points involved but we find that it is not necessary to deal with them because we agree with the contention of the learned counsel for the respondent that the Commercial Tax Officer would be entitled to assess the assessee in respect of the year 1955-56 regardless of any limitation provided in rule 34 of the Mysore Sales Tax Rules, 1948We overrule this contention because by the time this case was taken up again for hearing on February 1, 1968, the learned counsel for the appellant had had sufficient opportunity to study the point. Moreover, this Court does not decide constitutional points unless it is absolutely essential to do so7. We have already mentioned that the assessee filed four returns for the year 1955-56, and the Commercial Tax Officer passed an assessment order. The learned counsel for the assessee contends that the Commercial Tax Officer, when he passes an order of assessment on remand, would be assessing that turnover of the assessee which had escaped assessment to tax within the meaning of rule 34. However, the matter is concluded by authority of this Court. We are here concerned with a dealer who has submitted returns and not a dealer who has not submitted a return. As far as the dealer who has submitted a return, it seems to us that no limitation is provided for making an assessment on him, and that till a final assessment order is made it cannot be said that any turnover has escaped assessment within the meaning of rule 34(1).In Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur ([1964] 4 S.C.R. 436; 14 S.T.C. 976), Subba Rao, J., as he then was, speaking for the majority, while dealing with section 11-A of the Central Provinces and Berar Sales Tax Act, 1947, observed : "On the said analogy, the assessment proceedings under the Sales Tax Act must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. 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 completed and, if completed, it might be that the entire turnover would be caught in the net."8. He then dealt with the question : when do the assessment proceedings under the Act in respect of a registered dealer commence and when do they terminate ? He concluded thus :"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 10(3) or under section 11(2) of the Act."He then observed that a case would be pending till a final order of assessment was made by the highest Tribunal or Court under the Act. He finally concluded at page 453 :"For the foregoing reasons 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."9. Applying the above reasoning to the facts of this case it follows that the proceedings commenced after the returns were submitted by the assessee. No final order of assessment has yet been made in regard to the said returns, and, therefore, it cannot be said that any turnover of the assessee has escaped assessment within rule 34(1) of the Mysore Sales Tax Rules, 1948.