- (1.) IN this reference Under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, at the instance of the assessee' the questions which have been propounded for our decision are ( (1) Whether in the facts and circumstances of the case, there was valid notice on the applicant under the C. P. and Berar Sales Tax Act, 1947, for the assessment for period 19th January, 1950, to 26th November, 1954 ? (2) Whether the assessment for the period 19th January, 1950, to 26th November, 1954, was barred by limitation, in whole or in part, Under Section 11 (5) of the C. P. and Berar Sales Tax Act, 1947 ?
(2.) THE material facts are that the assessee, Messrs L. J. Patel and Co. , having failed to apply for registration as a dealer Under Section 8 of the Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Act), a notice in Form XII was given to the assessee Under Section 11 (5) of the Act in respect of the period from 19th January, 1950, to 26th October, 1953. When the assessee appeared before the Sales Tax Officer on 15th April, 1955, it was informed by an order passed by the Sales Tax Officer on that day that it would be assessed for the period from 19th January, 1950, to 26th November, 1954, The assessee was also directed to produce the account books for the above period. The account books were never produced by the assessee even after obtaining several adjournments for that purpose. Ultimately an order was passed by the Sales Tax Officer, Raipur, on 29th December, 1955, assessing the petitioner to tax for the period from 19th January, 1950, to 26th November, 1954. The assessee contended before the Board of Revenue that the assessment for the period beyond 26th October, 1953, was illegal inasmuch as it was not given any notice, under Rule 32 of the rules made under the Act, in Form XII for assessment for that period. It was also urged that the word "period" in Section 11 (5) of the Act meant a quarter of a year and in any case a year and, therefore, the notice which was issued to it was more than three years after the expiry of that period and was barred by limitation. Both these contentions were overruled by the Board of Revenue.
(3.) IN our opinion, the first question is concluded by the decision of the Supreme Court in State of Orissa v. Chakobhai Ghelabhai and Co. [1960] 11 S. T. C. , where it was held in connection with Section 12 (5) of the Orissa Sales Tax Act, 1947, that the issue of separate notices for several periods was not necessary and if only one notice was issued for several periods the assessment made for each period separately would be legal. In the case of Chakobhai Ghelabhai and Co. [1960] 11 S. T. C. , no separate notice was given Under Section 12 (5) for the last three quarters. For these quarters the assessing officer after he made orders of assessment for the first five quarters, had directed the assessee to produce his accounts; but no accounts were produced. The Supreme Court observed :section 12 (5) enables the assessing authority to make a best judgment assessment for 'all subsequent periods' after giving the dealer a reasonable opportunity of being heard. Such an opportunity was given in the present case even in respect of the last three quarters, and we are unable to hold that the assessment for the last three quarters was bad. Section 12 (5) of the Orissa Sales Tax Act, 1947, is similar to Section 11 (5) of the local Act which also says that "the Commissioner shall, at any time within three calendar years from the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed in such manner as may be prescribed to assess to the best of his judgment the amount of tax due from the dealer in respect of such period and all subsequent periods. " Here, no doubt, the notice which was issued to the assessee mentioned the period of assessment as from 19th January, 1950, to 26th October, 1953. But this, as pointed out by the Board of Revenue, was a clerical error and actually on 15th April, 1955, the Sales Tax Officer did pass an order telling the assessee that it would be assessed for the period from 19th January, 1950, to 26th November, 1954, and that it should produce its account books for that period before the next date of hearing, which was 25th April, 1955. It cannot, therefore, be contended that the assessee had no notice for assessment in respect of the period from 26th October, 1953, to 26th November, 1954. Rule 32, on which reliance has been placed by the assessee, no doubt says that the notice in Form XII to the assessee to show cause should give to the assessee time "ordinarily not less than thirty days after the date of issue of such notice. " But the word "ordinarily" itself indicates that the giving of thirty days' time is not a mandatory provision. That being so, it cannot be held that the giving of notice to the assessee in respect of the period beyond 26th October, 1953, by an order made by the Sales Tax Officer on 15th April, 1955, and directing the assessee to produce its account books on 25th April, 1955, was illegal inasmuch as it did not give thirty days' time to the assessee. The first question, therefore, must be answered by saying that the notice given to the assessee for assessment for the period from 19th January, 1950, to 26th November, 1954, was valid.;