V. S. KOKJE, J. - (1.) THE petitioner's firm carried on the business of manufacturing and selling of rice at Udaipur. A survey was conducted at the premises of the petitioner's firm on April 17, 1984 and the provisional assessment under section 7b of the Sales Tax Act (hereinafter to be referred as "the Act"), was made. As a result of such survey additional tax and penalty as well as direction with the interest was given. THE provisional assessment was for the period November 4, 1983 to April 30, 1984, under the assessment year 1984-85. A regular first appeal was filed against the said provisional assessment order dated April 17, 1984 before the Deputy Commissioner (Appeals)-I, Commercial Taxes Department, Udaipur, who partially allowed the appeal by the order dated March 4, 1987 and granted some relief to the petitioner's firm.
(2.) AS only partial relief was granted to the petitioner firm, the matter was taken by the petitioner in the second appeal before the Rajasthan Sales Tax Tribunal (for short, "the Tribunal" hereinafter ). The Revenue also filed appeal aggrieved by the partial relief granted to the petitioner. These two cross appeals were dismissed by the Tribunal by its impugned order holding them to be infructuous as a final assessment order under section 10 (3) of the Act having been passed in the meanwhile for the period from November 4, 1983 to October 20, 1984, covering the period for which the provisional period of assessment was made. The petitioner contends that the appeals could not be said to have become infructuous merely because a final assessment order under section 10 (3) of the Act was passed in between. According to the petitioner, the order of the assessing authority, though provisional, merged with the order passed by the Deputy Commissioner (Appeals) and therefore, the assessing authority could not, while finally assessing the tax, ignore the order or flout it. A decision of the single Bench of this Court in Assistant Commercial Taxes Officer v. Chauhan Enterprises [1994] 93 STC 37; (1992) 11 RTJS 146, is pressed into service. No elaborate order was needed for holding that a provisional order of assessment would come to an end since the final order of assessment was passed. However, since a decision of a learned single Judge of this Court is cited which partially supports the view canvassed by the petitioner, this detailed order is passed. Provisional assessment can be made under sections 7a and 7b of the Act. These sections are inserted after section 7 of the Act which relate to submission of returns by registered and other dealers. The scheme of the Act is that under section 7 every registered dealer and such other dealer as may be required to do so by the assessing authority has to furnish prescribed returns in the prescribed manner and prescribed forms for prescribed periods and within the prescribed time to the assessing authority. Along with the return, the tax due on such assessment of liability has to be deposited. Sub-section (4) of section 7 provides that every deposit of tax made under section 7 shall be deemed to be provisional subject to necessary adjustment in pursuance of the final assessment of tax made for any year under section 10. For our purpose sub-section (4) of section 7, section 7a and section 7b are relevant and they would be worthwhile to reproduce hereunder : " Section 7 (4 ). Every deposit of tax made under sub-section (2) shall be deemed to be provisional subject to necessary adjustment in pursuance of the final assessment of tax made for any year under section 10. 7a. Provisional assessment on failure to submit returns.- (1) If any dealer fails to submit a return under sub-section (1 ). . . . . . . . . . . . . . (2) Subject to the provision of sub-section (4) of section 7 the amount so assessed shall be payable by the dealer forthwith, and in default of payment shall be recoverable as an arrear of land revenue. 7b. Provisional assessment in case of evasion.- (1) If an assessing authority has reason to believe that a dealer has evaded or avoided tax he may after giving the dealer a reasonable opportunity of being heard, determine at any time and for any period the taxable turnover of such a dealer and assess the tax to the best of his judgment. (2) Subject to the provisions of sub-section (4) of section 7 the amount assessed under sub-section (1) shall be payable by the dealer forthwith, and in default of payment shall be recoverable as arrears of land revenue. "
(3.) READING the aforesaid provisions together would show that under the scheme of the Act, the primary responsibility of assessing the tax liability and paying tax in accordance with it has been imposed on the assessee. If the assessee fails to file the return and to pay tax in accordance with the provisions of section 7, section 7a applies and provisional assessment to the best of his judgment by the assessing authority can be made. Even this best judgment provisional assessment is subject to the provisions of sub-section (4) of section 7. That means the amounts paid under the provisional assessment are adjustable towards the tax dues which the assessee is held liable finally under section 10 of the Act. Similarly, when the assessee files a return and deposits the amount on the basis of his self-assessment under section 7 of the Act, but the assessing authority has reason to believe that the dealer has evaded or avoided the tax, he may resort to provisional assessment to the best of his judgment. This provisional best judgment assessment is again subject to the provisions of sub-section (4) of section 7 and therefore, any amount deposited by the assessee on the basis of the provisional assessment under section 7b of the Act is adjustable towards the liability which is finally imposed under section 10 while making the final assessment. It is therefore cleat that whatever orders are passed under section 7a and section 7b are provisional only in the sense that they are subject to final assessment under section 10 of the Act. The question raised in this case is that when these provisional assessments are challenged in the appeal and the appellate authority modifies or sets aside the provisional assessment, whether the assessing authority while making final assessment under section 10 is bound by the orders made in appeals from the orders of the provisional assessment. The answer appears to be very simple. As the assessment is provisional and subject to a final assessment under section 10 of the Act, even the orders passed by the appellate authority while dealing appeals from the provisional assessment would be subject to the final assessment under section 10. There is no question of assessing authority defying or flouting the orders of the superior officers while making assessment under section 10 of the Act. The situation is akin to a suit for permanent injunction in which a temporary injunction is passed. Even if the temporary injunction is confirmed in appeal by a higher court, the trial court is not precluded from dismissing the suit and refusing to grant permanent injunction. ;