DWARKA PRASAD, J. - A very short point arises for determination in this writ petition. The petitioners carry on business of selling stone ballast (gitti) and of undertaking construction work of buildings, etc. The petitioners never submitted any returns under the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act"), nor they were assessed to tax under the Act. According to the petitioners, they used to pay sales tax to Messrs. Bhanwardas Sitaramdas Mistri and that they were not liable to payment of sales tax under the Act. On 29th October, 1977, the Commercial Taxes Officer, B-Circle, Bhawani Mandi, District Jhalawar (hereinafter referred to as "the assessing authority"), issued a notice to the petitioners under section 10(2) of the Act directing them to produce the account books and other records for the period from 1963-64 to 1973-74. The petitioners submitted a reply to this notice stating that the notice was bad in respect of the period beyond 8 years and as the notice in question was a composite one comprising of the period beyond 8 years and that falling within 8 years, the same was illegal and no proceedings under section 10 could be initiated against the petitioners on the basis of such a notice. As the assessing authority was going to proceed with the assessment proceedings and was not prepared to drop the same on the basis of the reply of the petitioners, they have approached this Court by means of a writ petition under article 226 of the Constitution.

The respondents in their reply have stated that the petitioners have got themselves registered as a registered dealer under the Act on 2nd November, 1972, and that the petitioners were liable to payment of sales tax under the Act with effect from 1st April, 1963, as sales tax is payable on the commodities supplied by the petitioners on the first point of sale. The petitioners should have paid sales tax on the "gitties" supplied by them to the railways and other purchasers, but as they failed to do so, a notice under section 10(2) of the Act was served upon the petitioners. The respondents have also denied that the petitioners objected to the taking of proceedings on the ground that part of the period, in respect of which proceedings are sought to be taken, was beyond 8 years. The respondents have further contended that the period of 8 years would start running from the date of knowledge and not from the close of the assessment year.

Thus, on facts, it is the admitted case of the parties that no return was submitted by the petitioners under section 7(1) of the Act nor any assessment of tax was made under section 10 of the Act in respect of the period from 1963-64 to 1973-74. However, the argument of the learned counsel for the petitioners is based on section 12(2) of the Act, which provides that no notice under section 12(1) shall be issued in respect of any business for any year, after the expiry of 8 years from the end of the relevant assessment year. The notice under section 10(2) in the present case was issued on 29th October, 1977, which was certainly beyond the period of 8 years from the end of the assessment years 1964-65 to 1968-69. The learned Government Advocate submitted that the notice was issued by the assessing authority under section 10(2) of the Act and not under section 12(1) of the Act. But on a perusal of section 10(2) of the Act, we find that a notice could be issued thereunder only after a return has been filed under section 7(1) of the Act. In a case where no return has been filed by the dealer under section 7(1) of the Act and no assessment has been made under clause (b) of sub-section (1) of section 10, even after the close of the accounting year, then it must be deemed that the turnover of the dealer has escaped assessment to tax and a notice under section 12(1) will have to be issued. If the assessing authority for any reason considers that the whole of the business of the dealer has escaped assessment to tax under the