Rajendra Nath Mittal, J.
1. This order will dispose of General Sales Tax References Nos. 25 and 26 of 1973. Briefly, the facts are that the petitioner is dealing in gur, shakkar, sugar, vegetable ghee, etc. It was directed by the Assessing Authority on 27th December, 1956, to file monthly returns. It filed quarterly returns for the first three quarters of the assessment year 1956-57 and monthly returns thereafter till the end of the assessment year 1957-58. For the year 1956-57, it showed a gross turnover of Rs. 16,41,997-4-3. Deductions were claimed by it in respect of sales in favour of registered dealers for an amount of Rs. 11,06,842-14-3 for that accounting year. Gross turnover for the year 1957-58 was indicated by the petitioner to be Rs. 19,74,483.17. Deductions were claimed in respect of sales valued at Rs. 8,97,301.83 in favour of registered dealers. The Assessing Authority issued notices in form S. T. XIV on 27th August, 1958, for both the assessment years. The petitioner was duly served with notices. The appearance was put in on behalf of the assessee before the Assessing Authority for the first time on 4th September, 1958. Thereafter the cases were adjourned on the request on behalf of the petitioner on a number of occasions. Finally, the case came up for hearing on 15th July, 1961. On that date nobody appeared on behalf of the petitioner. The Assessing Authority after observing that various adjournments had been given to the petitioner, proceeded to make ex parte assessments. The gross turnovers indicated by the petitioner were taken to be correct. The Assessing Authority disallowed deductions under Section 5(2)(a)(ii) of the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the 'Act') in respect of the sales amounting to Rs. 7,69,400-14-6 regarding the assessment year 1956-57 on the ground that they had not been made in favour of registered dealers and that the declarations furnished by the petitioner were not genuine. Similarly, the deductions were disallowed in respect of sales valued at Rs. 4,25,657-13-6 for the assessment year 1957-58. The petitioner filed two appeals before the Deputy Excise and Taxation Commissioner which were rejected by him on 11th January, 1965. It went up in revisions against both the orders to the Joint Excise and Taxation Commissioner, who accepted the same on 23rd March, 1965. The department filed revision petitions before the Financial Commissioner, Taxation, Punjab. He, vide his orders dated 21st April, 1966, set aside the orders of the Joint Excise and Taxation Commissioner, Punjab, dated 23rd March, 1965, and restored those of the Depuy Excise and Taxation Commissioner dated 11th January, 1965. The petitioner filed applications under Section 22(1) of the Act for referring five questions of law arising out of the order of the Financial Commissioner dated 21st April, 1966, to this court. The applications were rejected on 29th February, 1968, by the Financial Commissioner, Taxation. Subsequently, the petitioner filed two applications under Section 22(2) of the Act before the High Court praying that the Financial Commissioner be directed to refer the questions of law to this court. The High Court directed the Financial Commissioner to refer the following question of law to this court:
Whether, on the facts and in the circumstances of the case, the order of assessment dated 24th July, 1961, was not an order under Section 11(4) of the Punjab General Sales Tax Act?
2. It is contended by the learned counsel for the petitioner that the order of the Assessing Authority is under Section 11(4). On the other hand, it is contended by the learned counsel for the respondent that it is under Section 11(3) of the Act. In order to determine the question, it is necessary to read the provisions of Section 11 of the Act. Sub-section (1) provides that if the Assessing Authority is satisfied without requiring the presence of dealer or the production by him of any evidence that the returns are correct and complete, he shall make assessment on the basis of such returns. Sub-section (2) says that if the Assessing Authority is not so satisfied, he shall serve on the dealer a notice in the prescribed manner requiring him on a date and at a place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns.
3. Sub-sections (3) and (4) deal with best judgment assessment. They are as follows;
(3) On the day specified in the notice or as soon afterwards as may be, the Assessing Authority shall, after hearing such evidence as the dealer may produce, and such other evidence as the Assessing Authority may require on specified points, assess the amount of tax due from the dealer.
(4) If a dealer having furnished returns in respect of a period, fails to comply with the terms of notice issued under Sub-section (2), the Assessing Authority shall within five years after the expiry of such period, proceed to assess to the best of his judgment the amount of the tax due from the dealer.
4. Under Sub-section (4), the Assessing Authority is entitled to assess the dealer to the best of his judgment within a period of five years. A plain reading of the said section shows that if the dealer fails to comply with the terms of the notice issued to him under Subsection (2) the order will be passed by the Assessing Authority under Subsection (4). Thus in order to determine whether the order has been passed under Sub-section (3) or Sub-section (4), one of the facts to be determined is, whether the dealer has complied with the terms of the notice issued to him under Sub-section (2) or not. The Tribunal has not given any finding to this effect in the reference. The Financial Commissioner has also not given the finding in its order dated 21st April, 1966. The notice which was issued to the petitioner by the Assessing Authority under Section 11(2) of the Act as given in the reference order is as follows :
You are hereby directed to attend in person or by an agent on 4th September, 1958, at 10 A. M. and there to produce or cause there to be produced at the said time and place the accounts and documents specified together with any objection you may wish to prefer and any evidence you may wish to adduce in support thereof.
5. The Tribunal has not given the details of the accounts and documents in the reference order which were required to be produced by the petitioner. He has also not mentioned whether the petitioner produced the accounts and documents as it was required to do. It is also not mentioned for what purpose the adjournments were being given thereafter. The learned counsel for the State has argued that the adjournments were given to the dealer for the purpose of allowing it to lead evidence in its defence. The Assessing Authority while determining this question made the following observations :
This case continued to be adjourned on one pretext or the other till 15th July, 1961, which date was duly noted by Shri Bhagat Singh, partner, but none turned up on 15th July, 1961, throughout the working hours of the day. A good number of opportunities had already been afforded to the dealer to furnish some cogent and tangible proof in regard to some transactions of the suspected nature involved in the case. There was thus no further justification to keep the case pending any longer. Accordingly, I proceed to complete the assessment in his absence. The account books maintained by the dealer were examined during the course of proceedings which substantiated the returned gross turnover.
6. The Assessing Authority has not mentioned whether the petitioner was given opportunities to produce the evidence required by the Assessing Authority or to produce evidence which the petitioner wanted to produce in its defence. This finding was affirmed by the Deputy Excise and Taxation Commissioner. In revision, the Joint Excise and Taxation Commissioner, Punjab, upset the aforesaid finding and observed as follows:
The notice under Section 11(2) of the Act is issued when the Assessing Authority is not satisfied with the returned version. In other words the Assessing Authority not only requires the presence of the petitioner in response to that notice, but also required certain evidence. Thus even if the petitioners appeared but did not produce the books of account or the evidence or on a number of dates themselves did not appear it cannot be said that there was compliance of the notice and the assessment was being framed under Section 11(3) of the Act. The petitioners admittedly defaulted in both appearances as well as in the production of evidence.
7. In the revision petition against the order of the Joint Excise and Taxation Commissioner to the Financial Commissioner, Taxation, Punjab, he did not give any finding on this matter. He decided the revision without deciding the aforesaid question. The learned counsel for the respondent has argued that the matter, whether the case falls under Sub-section (3) or Sub-section (4) of Section 11, has been decided by a Division Bench of this Court in Budh Ram Narain Dass v. State of Punjab  18 S.T.C. 437, wherein the observations were made that assessments under Section 11(3) and Section 11(4) of the Punjab General Sales Tax Act, 1948, are both 'best judgment assessments' and the difference between them would be of degree only. It was further observed that an assessment under Section 11(3) would not be so summary as an assessment under Section 11(4). In view of the aforesaid observations, he submits that the order of the Assessing Authority falls within the purview of Sub-section (3). He says that he has given detailed reasons for making the assessment and the assessment is not so summary. Pointing out the difference between the two sub-sections, the learned Bench after noticing Sub-section (4) observed as follows :
In the present case, the assessee filed the return and in support thereof produced the account books and appeared before the Assessing Authority with his counsel. After examining the account books and hearing the counsel and the assessee, the order of assessment was passed. Thus, the assessment was under Section 11(3) of the Act. There can be no question of the assessment being under Section 11(4) because there was no failure on the part of the assessee to comply with the terms of the notice issued under Sub-section (2) of Section 11.
8. The above observations show that the learned Bench had taken into consideration the aforesaid fact, viz., whether there was failure on the part of the assessee to comply with the terms of the notice issued under subsection (2) of Section 11 or not for determining whether the order was under Sub-section (3) or Sub-section (4). As the assessee in that case had complied with the notice, therefore, the question was decided on other factors, From the above observations it is clear that in order to decide the question referred to us, it is necessary to go into the fact whether the assessee has complied with the notice issued by the Assessing Authority under subsection (2) or not. The High Court under the Sales Tax Act and the Income-tax Act has advisory capacity and it cannot determine questions of fact. It has been observed in Raghubar Mandal Harihar Mandal v. State of Bihar1, that the duty of the High Court is to start with the statement of the case as the final statement of the facts and to answer the question with reference to that statement. In the present case, as already observed above, no finding has been given on the aforesaid question. In the circumstances, I am satisfied that the statement of the case as given by the Tribunal is not sufficient to determine the question referred to this court.
9. In view of the aforesaid facts, I refer the case back to the Tribunal directing it to give a finding whether the petitioner had complied with the notice under Section 11(2) of the Act issued by the Assessing Authority or not. It should also mention therein as to which accounts and documents were required to be produced by the petitioner.
Man Mohan Singh Gujral, J.
10. I agree