The judgment of the Court was delivered by

R. K. ABICHANDANI, J. - The petitioner, a proprietary concern carrying on business in the manufacture of castor oil, has challenged the assessment orders made on April 30, 1985 by the first respondent in respect of the assessment periods S.Y. 2029, 2030, 2032, 2033 and 2034 and the orders passed by the second respondent staying the assessment proceedings for S.Y. 2029, 2030, 2032, 2033 and 2034 and also the demand notices dated September 12, 1985 issued by the third respondent.

2. The petitioner is a registered dealer broth under the Gujarat Sales Tax Act, 1969 (hereinafter referred to as "the Gujarat Act") and the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Ace'). The petitioner was assessed under section 41 of the Gujarat Act read with section 9(2) of the Central Act, for S.Y. 2029 and 2030 on October 24, 1976 and January 23, 1977 respectively, by the Sales Tax Officer. For the S.Y. 2032, the assessment was made on January 31, 1978. In respect of these three years, the Sales Tax Officer, Enforcement Branch, Surat, issued a notice under section 44 of the Gujarat Act 13 for reassessment of sales tax on October 7, 1978, which was served on the petitioner on October 10, 1978. According to the petitioner, objections were raised on various grounds against that notice. The third respondent prepared a draft reassessment order under section 46A(2) of the Gujarat Act, read with section 9(2) of the Central Act, in respect of all these three years and forwarded them to the first respondent. The first respondent passed the assessment orders on April 3 1, 1985 confirm the draft reassessment order and served the orders on the petitioner on September 14, 1985 with the notice of demand dated September 12, 1985.

3. As regards the assessment periods of S.Y. 2033 and 2034, according to the petitioner, the last dates by which the assessment orders could have been passed under section 42 of the Gujarat Act were November 7, 1980 and October 27, 1981 respectively. According to the petitioner, no assessment orders were passed by the State within two years from the end of the year in which the last return was filed for the relevant assessment period. The notices for assessment under section 41 of the Gujarat Act was issued by the Sales Tax Officer on October 7, 1978 and were served on the petitioner on October 10, 1978. The assessment proceedings were carried out thereafter and the third respondent issued draft assessment orders on January 11, 1984, which were served on the petitioner on January 16, 1984 against which objections were raised by the petitioner on February 3, 1984. After hearing the petitioner, the first respondent made the assessment orders on April 30, 1985 in respect of S.Y. 2033 and 2034, which were served on the petitioner on September 14, 1985 along with a notice of demand dated September 12, 1985.

4. In the above background, the learned counsel appearing for the petitioner raised the following contentions :

(i) The reassessment orders for the S.Y. 2029, 2030 and 2032 were made beyond the period of three years from the date of service of notice contemplated by the provisions of section 44 of the Gujarat Sales Tax Act, 1969. Even the assessment orders for the S.Y. 2033 and 2034 were made beyond the period prescribed by the provisions of section 42 of the said Act, which as stated in the petition was two years. The impugned reassessment and assessment orders are therefore, made without jurisdiction and illegal.

(ii) The stay which was granted under the first proviso to section 42(1) was granted without there being any reasons for the same and the stay orders violated the ratio of the decision of the honourable Supreme Court in Fag Precision S-111-26 Bearings v. Sales Tax Officer (1) reported in [19971 104 STC 143, which laid down that the power of the State Government or the Commissioner under section 42(1) of the Gujarat Act, to stay assessment proceeding