P. Chandra Reddy, C.J.
1. The common question that is presented by these revisions bears upon Section 14 of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as the Act). This question arises in the following circumstances.
2. The respondent in all the petitions is a dealer in iron and iron scrap at Secunderabad. T.R.C. No. 27 of 1963 relates to the assessment year 1954-55 and it is sufficient for the purposes of this enquiry to state briefly the facts of that case. For that year the respondent returned a gross turnover of Rs. 90,099-10-3 and a net turnover of Rs. 70,505-6-8 claiming exemptions for the balance on the grounds which need not be set out here. The assessing authority discovered some discrepancies in the account books and therefore estimated the turnover at Rs. 1,22,456 on the 13th of July, 1956. Sometime later, on the 3rd September, 1957, there was a surprise inspection by the Special Commercial Tax Officer, who deals with tax evasions, and he seized an exercise book relating to credit sales. On verification it was found that several entries were not brought into regular account books which amounted to Rs. 37,800 for two and half months. It was also found that four pages were missing. The sales covered by these missing pages were estimated at Rs. 6,400. Thus they arrived at Rs. 44,200 as the unaccounted for credits.
3. On the basis of these suppressed sales, the assessing authority made a best judgment assessment. An appeal was carried by the aggrieved assessee to the Deputy Commissioner of Commercial Taxes, who sustained the assessment on the ground that the relevant statutory provision permitted such an estimate. But on further appeal by the assessee, the Sales Tax Appellate Tribunal reversed it differing from the department on the ambit and scope of Section 14(4) of the Act.
4. As the controversy to be resolved in these cases centres round Section 14 of the Act, it is useful to read it here:
14. (1) If the assessing authority is satisfied that any return submitted under Section 13 is correct and complete, he shall assess the amount of tax payable by the dealer on the basis thereof; but if the return appears to him to be incorrect or incomplete he shall, after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer. An assessment under this Section shall be made only within a period of four years from the expiry of the year to which the assessment relates.
(2) When making an assessment to the best of judgment under Sub-section (1) the assessing authority may also direct the dealer to pay in addition to the tax assessed, a penalty not exceeding one and half times the tax due on the turnover that was not disclosed by the dealer in his return.
(3) If no return is submitted by any dealer liable to tax under this Act before the date prescribed in that behalf, the assessing authority may, at any time within a period of four years from the expiry of the year to which the assessment relates, after issuing a notice to the dealer and after making such inquiry as he considers necessary, assess to the best of his judgment, the amount of tax due from the dealer on his turnover for that year, and may direct the dealer to pay, in addition to the tax so assessed a penalty not exceeding one and half times the amount of that tax.
(4) Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, or has been underassessed or assessed at too low a rate, or where the licence fee or registration fee has escaped levy or has been levied at too low a rate, the assessing authority may, at any time within a period of four years from the expiry of the year to which the tax or the licence fee or registration fee relates, assess the tax payable on the turnover which has escaped assessment or levy the correct amount of licence fee or registration fee, after issuing a notice to the dealer and after making such inquiry as he considers necessary. Such authority may also direct the dealer to pay in addition to the tax so assessed, a penalty not exceeding one and half times the amount of that tax, if the turnover had escaped assessment or had been under-assessed or assessed at too low a rate by reason of its not being disclosed by the dealer:Provided that before issuing any direction for the payment of any penalty under Sub-section (2), Sub-section (3) or Sub-section (4), the assessing authority shall give the dealer a reasonable opportunity to explain the omission to disclose the information, and make such inquiry as he considers necessary.
5. It is manifest that Section 14 contemplates different situations. While Sub-sections (1) and (3) deal with power to make best judgment assessment at the time of the original assessment, Sub-section (4) concerns itself with bringing to tax turnover which has escaped assessment. That deals with a case where it is brought to the notice of the assessing authority that either due to the inadvertence of the department or the concealment of the assessee a part of the assessee's turnover has escaped assessment.
6. The question that calls for determination in this case is whether the concept of best judgment could be imported into this sub-section also. Incontestably that power vested in the authority both under Sub-sections (1) and (3). But does Sub-section (4) also confer the same power on the department?
7. It is necessary in this behalf to notice the difference in language between Sub-sections (1) and (3) on the one hand and Sub-section (4) on the other. The crucial words in Sub-section (1) which is similar to Sub-section (3) are 'and after making such inquiry as he considers necessary assess to the best of his judgment, the amount of tax due from the dealer' while the words used in Sub-section (4) are 'assess the tax payable on the turnover which has escaped assessment or levy the correct amount of licence fee or registration fee after issuing a notice to the dealer and after making such inquiry as he considers necessary.' Can it be said that the content of the expression occurring in Sub-section (4) is the same as of the relevant clause in Sub-section (1)? We feel it very difficult to posit that the connotation of both the clauses is the same. While power is given under Sub-sections (1) and (3) to make the best judgment assessment, the power under Sub-section (4) of the department is limited to the assessment of turnover which has escaped assessment.
8. In our considered opinion, this implies an escapement which is definitely established. We are unable to accept the contention raised on behalf of the department that this phrase 'which has escaped assessment' can imply turnover which Could inferentially be said to have escaped. We think it has relation to escapement which is definitely proved and it does not take in a turnover which might have escaped assessment. The difference in phraseology in the different subsections denotes different notions and it is difficult to equate the power vested in the department under Sub-section (4) to that conferred on the authority under Sub-sections (1) and (3). It seems to us that the Legislature has advisedly confined the power of the department to assessing such turnover as is shown to have escaped and did not extend it to estimates depending upon inferences to be drawn by the department from certain circumstances. We do not think that this subsection clothes the department with power to make a best judgment assessment.
9. It is true that a judgment of a Division Bench of the Madhya Pradesh High Court in Commissioner of Sales Tax v. Kunte Brothers  13 S.T.C. 366, favours the view that is pressed upon us by the learned Government Pleader. Section 10 of the Madhya Bharat Sales Tax Act, 1950, which fell to be considered by the learned Judges of that High Court is analogous to Section 14(4) of the Act. It postulates,
If for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to the tax, or if the licence fee, registration fee or exemption fee has escaped levy or has been assessed at too low a rate in any year, the assessing authority at any time within a period of three years next succeeding that to which the tax or the licence fee, registration fee or the exemption fee relates, assess the tax payable on the turnover which has escaped assessment or levy the correct amount of licence fee, registration fee or exemption fee, after issuing a notice to the dealer and after making such inquiry as he considers necessary.
10. The terms of the above Section are exactly similar to those of Section 14(4),of the Act and it applies with full vigour to this case. The learned Judges there laid down that there was nothing under Section 10 to indicate that a best judgment assessment cannot be made in proceedings for the assessment of any escaped turnover. After stating that) under Section 10, the burden of proving that any turnover has escaped assessment or that there has been under-assessment was upon the department, they observed,.but this only means that in order to justify initiation of proceedings under Section 10 it is necessary for the assessing authority to establish at least one transaction the turnover of which was not included in the previous assessment. Once that is done, it is for the assessee to satisfy that no turnover has escaped assessment or that the escaped turnover is of a certain magnitude.
11. In support of the conclusion that a best judgment assessment was not excluded from the sweep and range of Section 10, they relied on the observations of Danckwerts, J., in Rosette Franks Ltd. v. DicK (H.M. Inspector of Taxes) 36 Tax Cas. 100 which are as follows:--
It is perfectly true that this is only one incident, and the one incident only, which the Inspector of Taxes was able to establish before the Commissioners; but it was open to the Commissioners, as it seems to me, to conclude that this was not merely an isolated transaction but showed the kind of thing which was going on, and they were in my view, entitled to come to the conclusion to which they did come from this incident, though one only, that there must have been other similar incidents and, therefore, that the accounts of the company could not be relied upon to show the whole of the trading profit of the company.
12. These observations would have certainly vouched the opinion of the learned Judges as to the scope and ambit of Section 10 of that Act if there was no difference in language between Section 10 which corresponds to Section 14 of the Act, and the statutory provision that fell to be considered in Rosette Franks' case 36 Tax Cas. 100. That provisions (viz., Sub-section (3) of Section 36 of the Income Tax Act, 1952) recited as follows:--
(b) the Additional Commissioners are not satisfied with, a statement which has been delivered or have received any information as to its insufficiency the Additional Commissioners shall make an assessment on the person concerned in such sum as according to the best of their judgment, ought to be charged on him.
13. The language of the above provision is not akin either to that of Section 10 of the Madhya Bharat Sales Tax Act, or Section 14 (4) of the Act, but is of the same terms as Section 14(1) of the Act.
14. It is not necessary for us to deal minutely with the reasoning: of the learned Judges underlying the principle enunciated by them. Suffice it to say that for the reasons mentioned above, we feel that the terms of Sub-section (4) of Section 14 do not seem to warrant the construction that is put upon that section. We therefore express our respectful dissent from the principle embodied in Commissioner of Sales Tax v. Kunte Brothers  13 S.T.C. 366. It is unnecessary to labour this point any further as we feel that the conclusion is inescapable from the language of Sub-section (4) of Section 14 that best judgment assessment is confined to situations envisaged in Sub-sections (1) and (3) and cannot be extended to Sub-section (4).
15. For these reasons, we feel thajt the order under revision cannot be interfered with.
16. In the result the tax revision cases are dismissed with costs in T.R.C. Nos. 26 and 27 of 1963. Advocates' fee in each case Rs. 50.