MATHUR, J. :- In these Writ Petitions the following question has been referred to us for decision in view of the conflict in two decisions of this Court, namely, M/s. Adarsh Bhandar v. Sales Tax Officer, Aligarh, AIR 1957 All 475 (FB) and Steel Enterprises (Pvt.) Ltd. v. State of Uttar Pradesh, 1969 All LJ 399.

"Whether in view of the various sub-rules of Rule 41, U. P. Sales Tax Rules, a dealer is entitled to deposit the tax admitted by him to be due and whether the assessing authority is entitled to make an enquiry whether the position assumed by the dealer as to his liability was justified in law, while making the provisional assessment?"

AIR 1957 All 475 (FB) (Supra) is a Full Bench decision, wherein Mootham, C. J. observed as below :-

"Under sub-rule (3) of Rule 41 the Sales Tax Officer is empowered to make an assessment to the best of his judgment when no return is submitted or when a return is submitted but is not accompanied by a treasury chalan in proof of the deposit in the treasury of the amount of tax calculated by the dealer on the turnover shown in such return or by a cheque for that amount. The dealer is required to calculate the tax payable in accordance with the prescribed rate. Neither sub-rule (2) nor sub-rule (3) provides that a treasury chalan or cheque need accompany the return only when the dealer admits liability for the tax.

These sub-rules require the payment of tax (or its deposit in the treasury) on the turnover shown by the dealer in his return, and they do not authorise the dealer to withhold payment of tax on the ground that he is not liable therefor. In the present case the return submitted by the petitioner was not accompanied by a treasury chalan or cheque. I am therefore of opinion that the Sales Tax Officer was - assuming R. 41 to be valid - free to determine the turnover of the petitioner to the best of his judgment, and provisionally to assess the tax payable by the petitioner for the quarter ending the 30th June, 1956."

Raghubar Dayal and Srivastava, JJ. agreed with this conclusion arrived at by the Hon'ble the Chief Justice and the observations made by him in respect thereof. The point on which they expressed a dissent was entirely different. The above can thus be taken as the view of all the three Judges constituting the Full Bench.

2. 1969 All LJ 399 (supra) is a decision by a Division Bench of this Court in which it was observed :-

"It is plain from the scheme set out in Rule 41 that what is intended is the advance deposit of the tax admitted by the dealer to be due on the basis of the return. The statute is a fiscal enactment and the intention appears to have been to ensure an expeditious payment of the tax admitted by the dealer to be due without waiting for the regular assessment at the end of the year....... It is plain from the language of sub-rules (1), (2) and (3) of Rule 41 that the dealer was required merely to deposit the tax admitted by him to be due and when filing the return for each quarter to adduce proof of such payment. If the return was filed and the proof adduced there was no jurisdiction in the Sales Tax Officer to make any assessment of the turnover at that stage. It is only if no return was submitted by the dealer or the return was submitted without payment of the tax that Rule 41 (3) empowered the Sales Tax Officer to determine the turnover to the best of his judgment and provisionally assess the tax payable for the quarter and require of the dealer to pay the tax so assessed." The Full Bench decision had not been brought to the notice of the Division Bench and for this reason, the question was not then referred to a larger Bench.

3. As the question has been referred to us, constituting a Bench of three Judges, the question naturally arises whether we can depart from the expression of opinion in the earlier Full Bench case. As observed in Atma Ram v. State of Punjab, AIR 1959 SC 519 a better course would be to constitute a larger Bench where a Full Bench of th