Judgment

SARKAR, J. : These appeals raise the question whether the Orissa Sales Tax Act, 1947 sets a time limit for making an order under S. 23(3) of the Act revising an order of assessment. The question depends on the interpretation of some of the provisions of the Act to which reference will be made in due course.

2. The facts are these. The respondents had been assessed to sales tax under the Act in respect of various quarters by a Sales Tax Officer. They appealed to the Assistant Collector of Sales Tax against the assessments contending that the Sales Tax Officer had wrongly rejected their claim to certain deductions from their taxable turnover. The appeals were allowed. Subsequently the Orissa High Court delivered a judgment in another case from which it appeared that the Assistant Collector was wrong in allowing the deductions. Thereupon the Collector of Sales Tax acting under S. 23(3) of the Act which provided that

"the Collector may, upon application or of his own motion, revise any order passed under this Act .... by a person appointed under S. 3 to assist him"

revised the orders of the Assistant Collector by raising the taxable turnover allowed by him to be deducted.

3. The respondents moved the High Court of Orissa under Art. 226 of the Constitution to quash the orders of the Collector in revision on the ground that they were illegal under the Act as they had been made more than thirty-six months after the expiry of the quarters in respect of which the assessments had originally been made. This contention was accepted by the High Court. Hence these appeals.

4. The High Court held that the orders in revision were illegal as they were really reassessments of turnover which had escaped assessment or been under-assessed and under sub-section (7) of S. 12 of the Act such reassessment could not be made in respect of any quarter after thirty-six months. It seems to me that the High Court was clearly in error in basing itself on sub-section (7) of S. 12. The material part of the sub-section is in these terms:

"If .... the turnover of a dealer for any period .... has escaped assessment or has been under-assessed, the Collector may at any time within thirty-six months of the end of that period call for a return .... and may proceed to assess ...."

The time limit of thirty-six months prescribed here is only for calling for a return. The sub-section prescribes no time limit for making the order of reassessment in respect of escaped or under-assessed turnover. Consequently this provision does not make the orders with which these appeals are concerned, in any way illegal.

5. We were then referred to the second proviso in sub-section (6) of S. 12 of the Act as specifying a time limit of thirty-six months for these orders. The sub-section is in these terms:

"Any assessment made under this section shall be without prejudice to any prosecution instituted for an offence under this Act:

Provided that when the Collector has imposed a penalty in addition to the amount assessed under this section, no further proceedings either revenue or criminal shall be taken against the dealer:

Provided further that no order assessing the amount of tax due from a dealer in respect of any period shall be passed later than thirty-six months from the expiry of such period." The sub-section would no doubt apply if the orders made in this case were orders "assessing the amount of tax due" contemplated by it. The question therefore is what do the words "order assessing the amount of the tax due" in the proviso mean? Of course, the whole of S. 12 has to be considered for deciding the meaning of these words and I will presently do so. In the meantime however I may observe that though S. 12 talks of assessment by a Collector it includes assessment by other officers appointed under the Act to assist the Collector for under S. 17 the Collector can delegate his powers to such officers, who are subordinate to him.

6. I now turn to S. 12. It has seven sub-sections each of which