Jagdish Sahai, J.
1. These two references Under Section 11 of the U.P. Sales Tax Act (hereinafter referred to as the Act) have been made by the Judge (Revisions) Sales Tax, U.P., at the instance of M/s. Kashi Jewellers, the assessee (hereinafter called as the 'assessee').
2. The assessment years relevant for these references are 1958-59 and 1959-60. The assessee is a dealer in ornaments and bullions. For the year 1958-59 he disclosed a turnover of Rs. 5,65,962.67 and for the year 1959-60 of Rs. 6,19,902.67. The assessee's version was accepted and the final assessment orders were made under Rule 41(5) of the rules framed under the Act.
3. A little later the assessing authority came in possession of certain documents on the basis of which proceedings against the assessee Under Section 21 of the Act for his reassessment for the two years mentioned above were started.
4. The assessing authority exercising his 'best judgment' fixed the escaped turnover at a figure of Rs. 7 lacs for each of the two years. The assessee appealed and the appellate authority reduced the turnover to Rs. 4,08,000 for each of the two years mentioned above.
5. The assessee then filed revision applications before the Judge (Revisions) who partly allowed and partly dismissed the same and as already stated earlier the instant references have been made at the instance of the assessee to us. The question referred is:
Whether in case initial assessment under Rule 41(5) has been passed accepting the turnover disclosed without there being 'best judgment assessment' in the initial assessment, is best judgment assessment permissible in case of partial escape of the turnover in proceedings Under Section 21 of the Act in view of the explanation attached to Section 21(1).
6. The sole question that requires determination at our hands is whether in a case of reassessment on the ground of escaped assessment a best judgment assessment can be made.
7. Mr. Brij Lal Gupta, who has appeared for the assessee has submitted that the explanation to Sub-section (1) of Section 21 of the Act would show that in a case of reassessment best judgment assessment cannot be made. It would be conducive to a proper understanding of the submission made at the Bar, if Section 21 of the Act is reproduced in its entirety :
21. Assessment of tax on the turnover not assessed during the year.- (1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer has, for any reason, escaped assessment to tax for any year, the assessing authority may, after issuing notice to the dealer, and making such enquiry as may be necessary, assess or reassess him to tax:
Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment or full assessment, as the case may be.
Explanation.-Nothing in this Sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment.
(2) No order of assessment under Sub-section (1) or under any other provision of this Act shall be made for any assessment year after the expiry of four years from the end of such year :
Provided that where the notice under Sub-section (1) has been served within such four years the assessment or reassessment to be made in pursuance of such notice may be made within one year of the date of the service of the notice even if the period of four years is thereby exceeded :
Provided further that nothing contained in this Section limiting the time within which any assessment or reassessment may be made shall apply to an assessment or reassessment made in consequence of, or to give effect to, any finding or direction contained in an order Under Section 9, 10 or 11.
Explanation_Where the assessment proceedings relating to any dealer remained stayed under the orders of any civil or other competent court, the period during which the proceedings remained so stayed shall be excluded in computing the period of limitation for assessment provided under this Sub-section.
8. It is true that Sub-section (1) of Section 21 provides for assessment as also for reassessment to tax. Section 21 contemplates two classes of cases. One class is of dealers who have completely escaped assessment to tax for any year. The other class is of dealers, who, though assessed, have not been fully assessed, because a part of their turnover escaped the attention of the assessing authority. The explanation to Sub-section (1) only provides that 'nothing in this Sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment.'
9. Mr. Brij Lal Gupta's contention is that inasmuch as the explanation uses the words 'from making an assessment to the best of its judgment', the best judgment assessment can be made only in a case where an assessment is being made under Sub-section (1) of Section 21 for the first time and not in a case where a reassessment is being made. In our judgment the submission of the learned counsel is not well founded. The Legislature had to use two words, 'assess' and 'reassess', in Sub-section (1) because they were providing for two contingencies, i.e., a case where there had been no assessment at all in which case there will be assessment and a case where though there was an assessment it was not comprehensive to include the entire turnover, in which case there would be reassessment. However, in the explanation the Legislature used the word 'assessment' in a wider sense to cover both classes of cases, i.e., cases where no assessment had been made and those in which reassessment was being made. The word 'assessment' is capable of this wider meaning and for the sake of convenience the Legislature used that comprehensive word instead of saying 'making an assessment or reassessment to the best of its judgment'.
10. How the Legislature would express itself is for it to decide. Courts cannot insist on the use of particular words. Whether the assessing authority assesses a person for the first time or reassesses him, it would be a case of assessment and it is in that sense that the word 'assessment' has been used in the explanation.
11. The reason why the word 'assess' alone has not been used in Sub-section (1) of Section 21 is that the Legislature wanted to make it patently clear and beyond all controversy that the assessing authority had jurisdiction not only to pass fresh order of assessment but also to revise an earlier order of assessment and to reassess the dealer.
12. The view that we are taking also finds support from the circumstance that the Legislature has used the word 'assessment' in the sense of 'reassessment' also in other parts of Section 21 as for example in Sub-section (2) of Section 21 of the Act which provides for the limitation of four years. Clearly neither assessment nor reassessment can be made after the expiry of four years and even Sri Brij Lal Gupta had to concede that the word 'assessment' as used in Sub-section (2) of Section 21 of the Act is comprehensive to include a case of reassessment also. Similarly in the explanation to Sub-section (2) the word 'assessment' has admittedly been used in the sense of being inclusive of reassessment. That being the position, we are of the opinion that best judgment assessment can be made even in the case of reassessment under Sub-section (1) of Section 21 of the Act.
13. Lastly it is contended that the view that we are taking is likely to conflict with the Division Bench decision of Desai, C.J., and K.B. Asthana, J., in Pooran Mal Kapoor Chand v. Commissioner of Sales Tax S.T.R. No. 147 of 1957 decided on 30th July, 1963. In that case the learned Judges did not intend to lay down an absolute rule because they themselves modified their observations by making two exceptions to it. The first exception that they made was that in a case where a turnover had either expressly or specifically been excluded the best judgment assessment was possible even while reassessing under Section 21 of the Act. The second exception that the learned Judges pointed out was that in case 'wrong principle in estimating the turnover' was employed, even then the best judgment assessment would be made while reassessing.
'Best judgment assessment' means an assessment which the assessing authority himself makes on the basis of the facts and circumstances operating in a case. If any additional material comes to the knowledge of the assessing authority while dealing with the proceeding Under Section 21 of the Act, there is nothing to prevent him from making a best judgment assessment. The view that we are taking was also taken by a Bench of this Court in S.T.R. No. 277 of 1966. Bhagat Ram Jai S.T.R. No. 147 of 1957 decided on 30th July, 1963. Narain, Kanpur v. The Commissioner of Sales Tax, U.P. Reported at p. 287 supra. decided on 16th January, 1969. While dealing with the observations of the learned Judges who decided M/s. Pooran Mal Kapoor Chand's case S.T.R. No. 147 of 1957 decided on 30th July, 1963, the learned Judges who decided this S.T.R. No. 277 of 1966 observed as follows :
It seems to us that the learned Chief Justice did not, at the time when he made these observations, have in mind the facts of a case such as the one before us. If the whole basis of the original assessment is unsound, and it is found that the turnover has escaped assessment, we see no reason why the Sales Tax Officer should not be entitled to reopen the original assessment and reassess the turnover. We do not see why the right to make an assessment to the best of his judgment should be denied to him in such a case.
14. For the reasons mentioned above, we answer the question referred to us in the affirmative in favour of the Commissioner of Sales Tax and against the assessee. We award a sum of Rs. 50 as costs in each of the two references, i.e., in all a sum of Rs. 100.