G.P. Singh, C.J.
1. This order shall also dispose of Misc. Petition No. 837 of 1974 (Sargodha Soap Works, Jabalpur v. Commissioner of Sales Tax, M. P.).
2. The petitioner in both these petitions is M/s. Brijlal Sachdeva & Brothers, a dealer registered under the Madhya Pradesh General Sales Tax Act, 1958. Misc. Petition No. 836 of 1974 relates to the period from 21st October, 1962, to 31st March, 1963, and M. P. No. 837 of 1974 relates to the period from 1st April, 1963, to 31st March, 1964. The assessments for these periods were completed by the Sales Tax Officer on 9th March, 1965, by two orders passed on that date. The assessee filed appeals against these orders which were decided by the Appellate Assistant Commissioner on 22nd December, 1965, by two separate orders. By these orders passed in the appeals, the assessments were set aside and the cases were remanded for fresh assessment. The assessment in each case was then made by the Sales Tax Officer by two separate orders passed on 30th August, 1967. Two separate notices under Section 19(1) were later issued by the Sales Tax Officer on 10th October, 1972, for reassessment. By these petitions under Article 226 of the Constitution, the petitioner challenges these notices.
3. Section 19(1) of the Act with which we are concerned in these petitions, as it stood at the time when the assessment orders dated 30th August, 1967, were passed and the impugned notices for reassessment were issued, reads as follows :
19. Assessment of turnover escaping assessment.-(1) Where an assessment has been made under this Act or any Act repealed by Section 52 and if for any reason any sale or purchase of goods chargeable to tax under this Act or any Act repealed by Section 52 during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed, in such manner as may be prescribed, to reassess the tax payable by such dealer and the Commissioner may direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount.
The section quoted above is as amended by the M. P. General Sales Tax (Second Amendment) Act (No. 20 of 1964), which came into force on 22nd September, 1964 Date of assent of the Governor. Section 8 of the amending Act substituted the words 'date of order of assessment' for the words 'expiry of such period'. The limitation for commencement of proceedings for reassessment before this amendment was five calendar years from the expiry of the period during which the escapement occurred. The effect of the amendment introduced by the amending Act is that the proceedings for reassessment can be commenced within five calendar years from the date of order of assessment.
4. The only contention raised by the learned counsel for the petitioner is that the notices for reassessment impugned in these petitions are barred by limitation. The first submission in support of this contention is that the question regarding the period of limitation for commencement of reassessment proceedings under Section 19(1) must be decided on the basis of the section as it stood during the period to which the escapement relates and subsequent amendments made in the section must be ignored. The second submission made by the learned counsel is that the words 'calendar year' as used in the section mean a year, i.e., a period of twelve months beginning from any date in a year and ending on the corresponding date in the next year, and not necessarily a year beginning from 1st January and ending on 31st December. For the reasons given below, we are unable to agree with either of these submissions.
5. Section 19 provides a machinery for reopening an assessment already completed for bringing to tax any sale or purchase which has been underassessed or has escaped assessment or has been assessed at a lower rate. The assessment of tax is dealt with under Section 18 and Section 19 deals with reassessment. Liability for payment of tax arises at the time when the sale or purchase is made in accordance with the rates of tax applicable on that date. Sections 18 and 19 are machinery provisions for quantification of the tax. Speaking generally, a dealer has no vested right in a machinery provision and he cannot insist that the machinery sections of the Act as they stood during the period when the sales or purchases were made, should alone be applied for assessment or reassessment. The submission of the learned counsel for the petitioner, that Section 19 as it stood during the period to which the escapement relates should be applied, cannot therefore be accepted. The learned counsel argued that after an assessment is made, the assessee gets a vested right that the finality of the assessment would not be affected and he would not be bothered by proceedings for reopening the assessment except in accordance with the law as it stood at the time of the assessment. A possible and strong answer to this argument is that a vested right not to be reassessed can arise only after the expiry of the period of limitation for reassessment and any change in the law extending the period of limitation before the expiry of the original period does not affect any vested right. We will, however, assume for the purposes of this case that the assessee gets a vested right on the making of an assessment that the finality of assessment would not be affected except in accordance with the law (including the law relating to the period of limitation) as it stood at the time the assessment was made and that any change in the law is presumed not to affect this vested right. In the instant case, the assessment was completed only on 30th August, 1967. The change in the period of limitation by Act No. 20 of 1964, as already noticed, was made with effect from 1st November, 1964. So the amendment changing the period of limitation for commencement of reassessment proceedings had already taken effect before the making of the assessment. In the instant case, therefore, no occasion arises for considering the application of any change in the law for reassessment after the date of assessment and before the issue of the notice for reassessment. The learned counsel also argued that an assessee gets a vested right not to be reassessed except within the period of limitation applicable for it in accordance with the law in force at the time when the sales or purchases were made. In our opinion, this argument is devoid of any merit. The question of reassessment arises only after assessment. Before assessment is completed, no question of reassessment under Section 19 arises. The accrual of any vested right not to be reassessed except in accordance with the law in force can only arise at the time when the order of assessment is made. The learned counsel for the petitioner placed reliance on the case of Commissioner of Sales Tax, M.P. v. Rameshlal Keshavlal 1975 M.P.L.J. 37 (F.B.). The period of assessment in that case was from 1st April, 1959, to 31st October, 1959. The order of assessment was passed on 9th July, 1962, and notice for reassessment was issued on 15th February, 1965. The question in that case was whether the notice for reassessment was within limitation. In holding that the notice was within limitation, there are some observations in the leading judgment that Section 19 as it stood during the period of assessment will alone apply and any subsequent amendment would not be relevant. These observations must be taken to be obiter as in that case the notice for reassessment was within limitation even in accordance with the law as it stood during the assessment period. Further, in that case, as already seen, the assessment was made in 1962 before coming into force of Act No. 20 of 1964 and the change in the period of limitation for commencement of reassessment proceedings occurred after the assessment order was passed. The decision in that case must be read in the background of its own facts and cannot be construed as an authority for the proposition that any change in Section 19 after the period of assessment cannot be relevant for reassessment proceedings taken under that section for that period.
6. As regards the second submission of the learned counsel for the petitioner, the point is concluded against him by a decision of a Full Bench of this Court in Kanhayyalal Shivsahay Sharma v. Deputy Commissioner of Sales Tax, M.P. 1958 M.P.L.J. 313 (F.B.) In this case, after considering the various dictionaries and authorities, the Full Bench headed by Hidayatullah, C. J. (as he then was), was of the opinion that the calendar year commences from 1st January and expires on 31st December and that it does not mean a year, i.e., a period of 365 days calculated from any day within the calendar. The Full Bench in the Kanhayyalal's case 1958 M.P.L.J. 313 (F.B.) was construing Section 11(5) of the C. P. and Berar Sales Tax Act, 1947. That section related to the assessment of a dealer who was liable to pay tax in respect of any period and who nevertheless wilfully failed to apply for registration. The limitation for assessing such a person under that provision was 'three calendar years from the expiry of such period'. The Full Bench laid down that 'three calendar years must be calculated from the 1st January immediately succeeding the calendar year in which the assessment period expired'. No authority has been brought to our notice which may have taken a different view of the meaning of the expression 'calendar year'. The learned counsel referred to us Black's Law Dictionary, page 255, which also does not support him. The learned counsel strongly relied upon the decision of the Supreme Court in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax A.I.R. 1964 S.C. 766. In that case the court was concerned with Section 11-A of the C. P. and Berar Act which dealt with assessment of escaped turnover. The limitation under that section was three calendar years from the expiry of the period. Limitation was computed in that case treating the calendar year equivalent to a year without noticing the distinction between the two. There is no discussion in that case as to the meaning of the expression 'calendar year'. Simply because the period of limitation in that case under Section 11-A was computed without noticing the distinction between a calendar year and a year, it cannot be inferred that the Supreme Court gave any decision as to the meaning of the expression 'calendar year' and that the Full Bench decision in the Kanhayyalal's case 1958 M.P.L.J. 313 (F.B.) stood overruled. In these circumstances, we are not prepared to depart from the ruling of the Full Bench in the Kanhayyalal's case 1958 M.P.L.J. 313 (F.B.) regarding the meaning of the expression 'calendar year'. It is not in dispute that if a period of limitation for commencement of reassessment proceedings is computed in accordance with the meaning given to the expression 'calendar year' in the Kanhayyalal's case 1958 M.P.L.J. 313 (F.B.), the impugned notices are within limitation.
7. The petitions fail and are dismissed. There shall, however, be no order as to costs. Security amount be refunded to the petitioner.