1. These applications concern the periods 1st June, 1947, to 31st March, 1949, and 1st April, 1949, to 31st October, 1952. The applicants have their office in Nagpur and were registered under the Bombay Sales Tax Act, 1946. They have been carrying on their business of selling or supplying goods in the Province of Bombay, and they have been, therefore, held to be dealers within the meaning of the Bombay Sales Tax Act, 1946, and assessed to the sales tax with penalties under Sub-section (5) of Section 11 and Sub-section (3A) of Section 12 of the Act. No arguments have been addressed to us as to the penalties imposed. Shri Thakkar for the applicants has contended that the applicants are not dealers within the meaning of the Bombay Sales Tax Act, that they should have been assessed under section IIA and not under Section 11(5), and that some goods which were sold by them outside the State of Bombay have been wrongly included in the taxable turnover. There is an agent of the applicants and he keeps a godown in Bombay, and the fact that certain goods were delivered to customers in Bombay has not been denied. Shri Thakkar urges that the contracts were entered into at Nagpur, and that the agent in Bombay was no more than a clearing agent in dealing in the goods concerned. We think, however, that the authorities below have correctly held that the goods were as a matter of fact sold in Bombay. Two recent decisions of the Supreme Court of India appear to support the view taken by the authorities below. In V.O. Vakkan and Ors. v. The State of Madras  6 S.T.C.647, it was held that a person, whether he is a resident or non-resident is a dealer within the meaning of the Madras General Sales Tax Act, 1939, if he carries on the business of selling goods within the State of Madras, that explanation (2) to Section 2 (b) makes the agent (if any) also a "dealer" and that it is not intended to take the principal outside the scope of liability. Section 2 (b) and explanation thereto appear to be similar to the definition of "dealer" and the explanation thereunder in the Bombay Sales Tax Act, 1946. In Mohanlal Hargovind Das v. State of Madhya Pradesh  6 S.T.C. 687, it was again decided that the activities of selling or supplying goods in Madhya Pradesh, if carried on habitually, would amount to the carrying on of the business of selling or supplying goods in the State of Madhya Pradesh and that even an outside merchant who indulged in such activities might in such event be said to be carrying on business in Madhya Pradesh and would come within the definition of "dealer" given in Section 2 (c). Section 2 (c) appears to be similar to the definition of "dealer" in the Bombay Sales Tax Act. We, therefore, think that there is no substance in the contention of Shri Thakkar that the applicants are not dealers.
2. The next argument urged by Shri Thakkar is as regards the application of Section 11 of the Act. According to his contention Section 11A of the Act should have been applied, with the result that he would get exemption in respect of a certain period by virtue of the period of limitation mentioned therein. Section 11A deals with cases in which a turnover in respect of sales or supplies of any goods chargeable to tax under the Act has escaped assessment or has been underassessed or assessed at a lower rate or any deductions have been wrongly made therefrom. In our opinion, this provision does not apply to a case in which a dealer is being assessed for the first time, the proper provision in such cases being Sub-section (5) of Section 11.
Shri Thakkar has contended that if a person has not been assessed at all, he has escaped assessment within the meaning of Section 11 A.Provisions similar to Sections 11 and 11 A are to be found in the Indian Income-tax Act where the expression "escaped assessment" has been construed in the manner in which we are construing Sections 11 and 11 A. The arguments of Shri Thakkar on this point also do not appear to be correct.
3. As regards the goods alleged to have been despatched outside the Bombay State, they were not allowed by the authorities below. It seems to us that in those cases all that the applicants could produce were certain bills and letters from the customers, but no numbers of railway receipts were produced as in other cases deserving exemption. In the absence of railway receipt numbers, it was not possible for the authorities to check the contentions of the applicants that the goods in question had been despatched or sold outside the State of Bombay. We think that the authorities below were right in rejecting this contention. In the result, therefore, the applications are dismissed.