- (1.) THIS writ petition and come up for hearing before me in March, 1963, when I was told that the question raised had been referred to a Full Bench in another case, with the result that I directed this case to be set down for hearing after the summer vacation.
(2.) THE question relates to the true ratio of the decision of the Supreme Court in Madan Lal Arora v. Excise and Taxation Officer, Amritsar AIR 1961 SC 1565. The Full Bench decision is since reported a Rameshware Lal Sarup Chand v. U. S. Naurath, 1963-65 Pun LR 768: (AIR 1964 Punj 1) (FB ). In that case D. K. Mahajan J. , took the view that a best judgment assessment under S. 11 of the East Punjab General Sales Tax Act must be completed within the period of limitation prescribed under sub-section (4), (5) and (6) and that the period of limitation in these sub-section has also to be imported into sub-section (3 ). The order of assessment beyond three years must, according to this view be quashed on the ground of its being without jurisdiction. Capoor J. , without going further merely held that the impugned assessments being on best judgment basis had to be made within three years. Pandit J. gave a dissenting judgment holding that there was no need of importing limitation of three years for completing the assessment under sub-section (3) of S. 11 from sub-sections (4), (5) and (6); according to him all that section 11 (4) requires is that the assessment authority must proceed to asses within three years mentioned therein and it is not necessary that final order should actually be passed within a period of three years. It may be mentioned that this reference had been necessitated because of conflicting Bench decisions on the true scope of the ration of the decision in Madan Lal Arora's case, AIR 1961 SC 1565. The two Bench decisions mentioned by the Full Bench which took divergent views are Nathu Ram Nohar Chand v. State of Punjab 1962 Cur LJ (Punj) 325 and Avtar Singh Rajnit Singh v. Assessing Authority (Excise and Taxation Officer) Ludhiana, 1963-65 Pun LR 422. I may mention that in another case Khem Chand Vijay Kumar v. J. S. Malhotra, AIR 1963 Punj 385 Pandit J. , and myself without deciding did not feel unimpressed by the contention that the Supreme Court in Madan Lal Arora's case. AIR 1961 SC 1565 did not lay down that to be valid the assessments under section 11 (4) of the East Punjab General Sales Tax Act must be completed within a period of three years: the term 'assessment' it was felt had variable import: Jitwan Singh and Sons v. Excise and Taxation Officer, 1960 Pun LR 562 was also cited before us.
(3.) IT appears that on 6-8-1963 in Ghanshyam Das v. Regional Assistant Commissioner of Sales Tax Nagpur, (1963) 14 STC 976: (AIR 1964 SC 766) a Bench of five Judges of the Supreme Court construed S. 11 (1) to (4) and S. 11-A of the Central Provinces and Bearer Sales Tax Act, 1947, and in the majority judgment it was observed that proceeding duly initiated in time can be completed without time-limit. On the authority of these observations a Bench of this Court (Hon'ble C. J. and Harbans Singh J.) in Khushi Ram Behari Lal and Co. v. Assessing Authority, Civil Writ No. 413 of 1926 dated 31-12-1963 (Punj) appears to have upheld the contention that if proceedings are once initiated then no subsequent event can alter the liability of the dealer to be assessed or the authority the department to make assessment. Khanna J. , and myself Madan Mohan Kot v. District Excise and Taxation Officer, Civil Writ No. 1934 of 1963 dated 27-1-1964 (Punj) followed this decision. In Murli Mal Ram Nath v. Shri Darvyo Singh, Assessing Authority, Civil Writ No. 186 of 1963 dated 17-12-1963 (Punj) Shamsher Bahadur J. , had occasion to notice both the Supreme Court decisions in Madan Lal Arora's case AIR 1961 SC 1565 and Ghanshyam Dass's case 1963-14 STC 976 : (AIR 1964 SC 766) and in his view, the statutory bar of three years laid in sub-section (4) of section 11 relating to 'best judgment assessments' did not obtain in case of ex parte orders of assessment where the assessee had failed to turn up in response to the notice. In that case, as the order shows, the assessment order disclosed that there return filed by the assessee had been accepted on the question of gross turnover and it was only the deductions which were not accepted and the entire field was considered to be open to the Assessing Authority to compute the figures of turnover on the basis of own estimate. The respondent's learned counsel has laid great stress on this judgment and has submitted that this is practically on all fours with the case before me and I should follow it, leaving it to the petitioner to go up on appeal. On the other hand, the petitioner's learned Counsel has also drawn my attention to another recent Bench decision of this Court decided on 19-2-1964 by Bedi and Shamsher Bahadur JJ. , in Rattan Di Hatti v. Excise and Taxation Officer, Ludhiana, 1964-66 Pun LR 626, where the head not in the Supreme Court Judgment as reported in Ghanshyam Das's case 1963-14 STC 976: (AIR 1964 SC 766) has been held to be somewhat misleading and the ratio of the Full Bench decision in Rameshwar Lal Sarup Chand's case, 1963-65 Pun LR 768: (AIR 1964 Punj 1) (FB) followed. It, however, appears that the attention of the Bench was not drawn to the earlier Bench decision in the case of Khushi Ram Behari Lal and Co. , Civil Writ No. 413 of 1962 dated 31-12-1963 (Punj) nor to the Single Bench Decision in the case of Murli Mal Ram Nath Civil Writ No. 186 of 1963 dated 17-12-1963 (Punj ). In fairness to the petitoner's learned counsel, I may note that he has not attempted to support the view taken in the case of Rattan Di Hatti, 1964-66 Pun LR 626, the decision having been cited only to bring out the uncertainty of legal position on this important point in face of the maize of conflicting pronouncements.;