A proceeding under section 12(8) of the Orissa Sales Tax Act, 1947, cannot be initiated for the period for which the assessment proceeding is pending before the assessing authority.

JUDGMENT

H. L. AGRAWAL, C.J. - "Can a proceeding under section 12(8) of the Orissa Sales Tax Act, 1947 (for short, 'the Act') be initiated for the period for which the assessment proceeding is pending before the assessing authority ?" is the short and significant question which has come to the fore in this writ application.

2. The facts. - Petitioner, which is a registered partnership firm and deals and ready-made garments, woollen clothes, handloom materials, etc., is a registered dealer under the provisions of the Act. It had submitted its return for the assessment year 1974-75 in the usual course in May, 1975. But the assessment proceedings were initiated late, in December, 1977 and went on being adjourned from time to time and were ultimately fixed to 10th March, 1978. The petitioner's stand is that it had been fully co-operating in the assessment proceedings and was not responsible for the adjournments except on a few occasions. However, on 10th March, 1978, the assessing officer instead of completing the assessment served the notice in annexure 1 under section 12(8) on the petitioner alleging that he had reasons to believe that the turnover of 1974-75 had escaped assessment, and the petitioner was called upon to appear on 10th April, 1978.

3. The petitioner has challenged the initiation of this proceeding under section 12(8) of the Act mainly on the ground that the assessment proceeding in respect of which the return had already been filed having not been completed, there was no question of any "escaped assessment" or "under-assessment" and the occasion for reopening any proceeding on the facts of the case did not arise.

4. In the counter-affidavit filed on behalf of the opposite party it has been stated that in the original assessment proceeding, hearing took place from time to time and it was finally adjourned to 10th March, 1978 when the following order was passed :

"The dealer along with sales to R.D. (registered dealers) statements, to negate the fraud case report, has filed a list of names (23 cases) to whom he has given (as claimed) goods worth of different values for approval and not for sale.

In the interest of Revenue it is necessary to verify from these persons whether the contention taken is correct. In many cases he has not given the address and we have to find it out. Sales to R.D. statement also needs verification. The dealer has himself applied for adjournment and did not come up prepared as mentioned in my order on preceding dates. Since it would not be possible to complete assessment, considering all aspects judiciously, issue notice under section 12(8) of the Act to keep it alive and in the meantime give reference to concerned quarters for verification of the contention taken by the dealer.

Since in another dealer's case Honourable High Court of Orissa has ordered that when notice under section 12(8) is issued even if the case is not assessed within the time-limit of three years, the case remains open for assessment, this procedure should be adopted in registered dealers case like the present one.

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The rest of the reply is all arguments and need not be noticed save and except the following statement which is in support of the stand of concealment or suppression :

"That the opposite party humbly submits that in the present set of facts, the opposite party had information that the turnover as returned by the dealer was not correct inasmuch as they were under-stated in view of the fraud report at hand. That verification of the fraud report would have taken a long time, as it would be apparent from the record that the dealer did not extend co-operation as was required by him. Besides, the petitioner did not furnish the correct address of the persons to whom he stated to have given the goods on approval. That whether the goods were sold to the third parties or were taken for approval could not certainly have been decided without making inquiries with those perso