N.K. Sud, J. - (1.) CHALLENGE in this writ petition is to the order dated January 31, 1983 passed by the Assessing Authority, Malout, determining the gross turnover of the petitioner at Rs. 60 lacs for the assessment year 1974 -75 by resorting to the best judgment assessment under Section 11(4) of the Punjab General Sales Tax Act, 1948 (hereinafter referred to as "the Act").
(2.) THE facts as stated in the writ petition may first be noticed : The petitioner, a partnership firm, was carrying on the business of commission agent in foodgrains, oil seeds, ginning, crushing of oil seeds, etc., at Malout. It had been granted registration certificate under the Punjab General Sales Tax Act, 1948 and the Central Sales Tax Act, 1956, with effect from September 20, 1973. For the assessment year 1974 -75, it had filed the requisite four returns declaring the turnover of Rs. 38,36,976.05, the break -up of which was as under : First quarter ... Rs. 27,37,516.58 Second quarter ... Rs. 10,13,628.68 Third quarter ... Rs. 85,832,79 Fourth quarter ... Rs. Nil A notice under Section 11(2) of the Act on form ST -XIV was issued on October 5, 1978 requiring the petitioner to produce the account books and the declarations to enable the Assessing Authority to complete the assessment. It is alleged that the said notice had been served on an ex -employee Shri Ram Lal who was no longer in the employment of the firm. It is further claimed that no notice was served on any of the partners of the firm. In August, 1982, one partner Shri Narinder Kumar on learning about the pending proceedings, appeared before the Assessing Authority on August 10, 1982 and furnished the details of other partners. In November, 1982, two partners namely Smt. Kaushalya Devi and Shri Hans Raj Bajaj appeared before the Assessing Authority and expressed their inability to produce the books of accounts. Finally, a notice dated January 25, 1983 was issued to the petitioner in the following terms : "Assessment for the year 1974 -75 is lying pending for finalisation for want of production of account/declaration if any by you. The records available before the undersigned show that you are deliberately adopting evasive tactics and are withholding accounts. You are now given this final opportunity of appearing before the undersigned on January 31, 1983 along with books of accounts or any other evidence, if any, in your possession in my camp office at Malout at 10 a.m. Please take notice that in case of non -compliance on your part, the assessment will be finalised by declaring GTO/TTO Rs. 60,00,000." A copy of this notice has been placed as annexure P1 with the writ petition. No compliance was made in response to this notice either. The Assessing Authority, therefore, proceeded to frame the best judgment assessment by resorting to the provisions of Section 11(4) of the Act and determined the gross turnover at Rs. 60 lacs. A copy of this order is placed at annexure P2 with the writ petition.
(3.) AGGRIEVED by the assessment order, the petitioner filed an appeal before the Deputy Excise and Taxation Commissioner (Appeals), Ferozepur Division. The appeal was accompanied by an application for entertaining the appeal without prior payment of additional demand which had been created under the impugned assessment order. The Deputy Excise and Taxation Commissioner vide order dated September 5, 1983 declined the prayer on the ground that the appellant had failed to lead any evidence about the weak financial position of the partners. He, therefore, directed the petitioner to deposit the entire additional demand by September 2, 1983. It was made clear that if the deposit was not made by that date and receipt not produced by September 5, 1983, the appeal would be dismissed in limine. A copy of the order of the Deputy Excise and Taxation Commissioner has been attached as annexure P4 with the writ petition. Since, the petitioner failed to deposit the tax by September 2, 1983, the appeal stood dismissed.;