A best judgment assessment under Section 11(4) of the Punjab General Sales Tax Act can only be made when the Assessing Authority decides not to use the return as the sole basis for assessment.

1. These two writ petitions (Civil Writ Nos. 1473 and 1646 of 1961) have some common features and must be disposed of together, as indeed, the learned counsel also addressed main arguments in Civil Writ No. 1646 of 1961, submitting that no separate detailed arguments would be necessary in Civil Writ No. 1473 of 1961.

2. In Civil Writ No. 1646 of 1961, the petitioner is a firm Messrs. Khem Chand Vijay Kumar claiming to be a partnership concern and carrying on business of fabrication of iron and steel articles and the sale thereof. Its registered number under the Punjab General Sales Tax Act (hereafter called, the Act) is stated to be R. C. No. Jul. III-2266. The firm, according to its allegations, was required to file quarterly returns under the Act and "for the assessment year 1957-58 ending 31-3-1958, it actually filed returns ending 30-6-1957, 30-9-1957, 31-12-1957 and 31-3- 1958 within the prescribed time and also deposited the amount due as required by Section 10 of the Act. The total amount of tax paid was Rs. 12,074.82, nP., on a gross turnover of Rs. 16,14,522.99 nP. On 12-7-1960, Shri Vijay Kumar appear ed before the Assessing Authority when notice in Form S. T. XIV (Annexure A) was served on him. The petitioner was, accordingly, required to produce the account books for 1957- 58, the date being 4-8-1960. The case was ad journed from time to time and the books, according to the petitioners averment, were seen up to 5-10-1961. Sometime in May, 1961, a notice was received from respondent No. I, Assessing Authority, requiring the petitioner to attend his office on 29-5-1961 with account books for different years including the year 1957-58. This notice is annexed to the petition as Annexure B. On 20-11-1961, respondent No. I is stated to have made best judgment assessment at a figure of gross turnover of Rs. 22,85.435.35 nP. Thus creating a demand of Rs. 22,443.24 nP. The assessment order is Annexure C to the petition.

3. Against the assessment order, the petitioner preferred an appeal, but it is averred in paragraph 5 of the petition that "this appeal is not entertainable unless the petitioner deposits the amount of tax levied. It is, however, within the jurisdiction of the Appellate Authority to entertain the appeal without the tax being paid, tout all the same the recovery proceedings continue". It is then pleaded that, as is apparent from the notice Annexure B, up to 29-5-1961, the petitioner-firm was merely being required to show the books of account or to lead further necessary evidence in support of the return as required by Section II (2) and that at no stage did the petitioner fail to comply with the terms of notice issued under Section 11 (2) of the Act. This position, according to the petitioners plea, also follows from the terms of notice dated 12-7-1960 because according to that notice also the petitioner was required to produce books of account. In the assessment order Annexure C there is no finding that the assessee at any stage failed to produce the account books or that there was any failure on his part to give explanation on any specified points which may have been indicated by the Assessing Authority, respondent No. I. In the circumstances it is urged in paragraph 7 of the petition "that the Assessing Authority had no jurisdiction to assess the petitioner-firm after the expiry of three years from the end of the respective periods, viz., the 31st of March, 1961, much less to make a best judgment assessment after the expiry of that period. The petition further proceeds in paragraph 8 to state "that there is no finding on the record, nor is it apparent from the assessment order that respondent No. I at any time within a period of three years from the end of the respective periods may have proceeded to make a best judgment assessment; and in view of this state of affairs the entire assessment annexure C falls to the ground". Up to 29-5-1961, according to the petitioners case, no best Judgment assessm