JUDGMENT
N.C. Sharma, J.
1. M/s. Jai Hind Medical Store was a registered firm and a registered dealer under the Rajasthan Sales Tax Act, 1954 (for short hereinafter “the Act”). The dispute relates to the accounting period ending on Deepavali 1965, that is to say from November 4, 1964 to October 25,1965, relating to the assessment year 1965-66.
2. The Assistant Commercial Taxes Officer, Ward-II, Sector-A, Jodhpur made assessment for the above accounting year on August 4, 1977, under Section 10 of the Act to the best of his judgment as the assessee did not appear in later part of the assessment proceedings. Mr. Bhoormal, partner of the assessee-firm, made an application to set aside the ex parte best judgment assessment on September 7, 1977, under Section 10-C of the Act. The ex parte assessment was set aside by the assessing authority on March 31, 1979. It was observed in that order that there had also been underassessment. Ultimately, on July 20, 1981, the Assistant Commercial Taxes Officer, Ward-I, Circle-D, Jodhpur made the assessment and levied sales tax amounting to Rs. 4,002.88 on the assessee. Apart from that, penalty of Rs. 400 and Rs. 1,000 were also imposed under Section 16(1)(c) and 16(1)(b) of the Act and an amount of Rs. 8,600 was levied as interest under Section 11-B of the Act. This assessment was also made according to best judgment of the assessing authority as the assessee did not appear despite notice. Aggrieved by the assessment order, the assessee-firm filed an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur Relying upon decision of this Court in Arbind & Co. v. State of Rajasthan reported in [1979] 43 STC 430, the appellate authority held that it was a case where the assessee had failed to file the return and, therefore, the whole of the turnover of the petitioner-firm had escaped assessment. According to the appellate authority, to such a case, provisions contained in Section 12 of the Act were attracted and no assessment under Section 12 could be made without serving upon the assessee-firm a notice in the prescribed form as provided in Section 12(1) of the Act. It was further held that no notice under Sub-section (1) of Section 12 could be issued in respect of any business for any year after the expiry of 8 years from the end of the relevant assessment year. The appellate authority, therefore, quashed the assessment made by the assessing authority on July 20, 1981. The assessing authority filed a second appeal before the Sales Tax Tribunal, Ajmer, but the Tribunal following the same decision of this Court in Arbind & Co.’s case [1979] 43 STC 430 dismissed the appeal.
3. The assessing authority has filed this revision petition under Section 15(2) of the Act. The short question involved is as to whether, in the light of the facts stated above, the Tribunal was right in holding that the assessment could have been made only under Section 12 of the Act. In the case of Arbind & Co. [1979] 43 STC 430 (Raj) the facts were that the assessing authority had issued a notice to the petitioners under Section 10(2) of the Act directing them to produce the account books and other records from the period of 1963-64 to 1973-74. To this notice, the petitioners submitted the reply stating that the notice was bad in respect of the period beyond 8 years and as the notice was a composite one and comprised the period beyond 8 years and also that falling within 8 years; the same was illegal and no proceedings under Section 10 could be initiated against the petitioners on the basis of such a notice. It was an admitted case that no return had been submitted by the petitioners under Section 7(1) of the Act nor any assessment of tax was made under Section 10 of the Act by the assessing authority in respect of the period from 1963-64 to 1973-74. On behalf of the assessing authority, it was contended before this Court that notice was issued by the assessing authority under Section 10(2) of the Act. For this, it was held that a notice under Section 10(2) could be issued only after a return was filed under Section 7(1) of the Act. In a case, where no return has been filed by the dealer under Section 7(1) of the Act and no assessment has been made under Clause (b) of Sub-section (1) of Section 10, even after the close of the accounting year, then it must be deemed that the turnover of the dealer has escaped assessment to tax and a notice under Section 12(1) will have to be issued. It was also observed there that the assessing authority can take action under Section 12 of the Act, which prohibited him from issuing a notice after the expiry of 8 years from the end of the relevant assessment year and that no notice under Section 12(1) of the Act could be issued in respect of the escaped turnover of the entire business of the dealer at any time or within 8 years from the date of the knowledge of such escapement.
4. The facts in the present case are clearly and distinctly distinguishable from the facts in Arbind & Co.’s case [1979] 43 STC 430 (Raj). In the present case, the Assistant Commercial Taxes Officer, Ward-II, Sector-A, Jodhpur has initiated proceedings for assessment under Section 10(1)(b) of the Act and since the assessee-firm did not appear despite notice, the assessing authority made assessment of the tax to the best of his judgment. Since assessment was made under Section 10(1)(b) of the Act, the partner of the assessee-firm made an application for setting aside the ex parte assessment. That application was made under Section 10-C of the Act where a dealer can make an application against best judgment assessment for setting it aside after showing sufficient cause. The best judgment assessment was set aside by the assessing authority under Section 10-C of the Act and thereafter the Assistant Commercial Taxes Officer, Ward-I, Circle-D, Jodhpur, to whom the case was transferred, again proceeded to make assessment under Section 10 of the Act. This assessment made on July 20, 1981 was also a best judgment, for the reason that the assessee did not appear even then before the assessing authority. In such circumstances, it cannot be said that no assessment had been made under Clause (b) of Sub-section (1) of Section 10 of the Act after the close of the accounting year, as was the case in Arbind & Co.’s case [1979] 43 STC 430 (Raj). In the instant case, not only the initial assessment made on August 4, 1977 was made under Clause (b) of Sub-section (1) of Section 10 of the Act but the later assessment dated July 20, 1981, after setting aside the ex parte assessment, was also made under the very same provision. There was, therefore, no question of taking any action by the assessing authority under Section 12(1) of the Act and the provisions contained in Sub-section (2) of Section 12 of the Act were not attracted. The two decisions of their Lordships of the Supreme Court relied upon in Arbind & Co.’s case [1979] 43 STC 430 (Raj) also made it clear that escapement of assessment applied where a notice was received by an assessee-firm but the same resulted in no assessment at all and also to where due to any reason, no notice was issued to the assessee and on that account, there was no assessment of his income.
5. In my opinion, the Rajasthan Sales Tax Tribunal as well as the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur were wrong in relying upon and following Arbind & Co.’s case [1979] 43 STC 430 (Raj) in the matter in question which had no application to the facts of the present case.
6. It was urged on behalf of the non-petitioners that even no assessment under Section 10 could be made after the expiry of 5 years from the end of the relevant assessment year on account of the provisions contained in Section 10-B of the Act. This contention has no force in it for the simple reason that Section 10-B was inserted with effect from 7th April, 1979 by Rajasthan Act 4 of 1979. In the present case, the assessment proceedings under Section 10(1)(b) had been initiated even prior to August 4, 1977 and that Section 10-B of the Act had no retrospective application.
7. I, therefore, allow this revision, set aside the appellate order of the Rajasthan Sales Tax Tribunal dated February 17, 1986 and remand the case to the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, to restore appeal No. 135/81-82 filed by M/s. Jai Hind Medical Store before it and to decide the appeal on its merits and in accordance with law.