JUDGMENT N.K. Sud, J. - Challenge in this writ petition is to the order dated 31/1/1983 passed by the Assessing Authority, Malout, determining the gross turnover of the petitioner at Rs. 60 lacs for the assessment year 1974-75 by resorting to the best judgment assessment under Section 11(4) of the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the Act). 2. The facts as stated in the writ petition may first be noticed :- The petitioner, a partnership, firm, was carrying on the business of Commission Agent in foodgrains, oil seeds, ginning, crushing of oil seeds, etc. at Malout. It had been granted registration certificate under the Punjab General Sales Tax Act, 1948 and the Central Sales Tax Act, 1956, w.e.f. 20.9.1973. For the assessment year 1974-75, it had filed the requisite four returns declaring the turnover of Rs. 38,36,976.05, the break-up of which was as under :- First Quarter Rs. 27,37,516.58 Second Quarter Rs. 10,12,628.68 Third Quarter Rs. 85,835.79 Fourth Quarter Rs. Nil 3. A notice under Section 11(2) of the Act on form ST-XIV was issued on 5.10.1978 requiring the petitioner to produce the account books and the declarations to enable the Assessing Authority to complete the assessment. It is alleged that the said notice had been served on an ex-employee Shri Ram Lal was no longer in the employment of the firm. It is further claimed that no notice was served on any of the partners of the firm. In August, 1982, one partner Shri Narinder Kumar on learning about the pending proceedings, appeared before the Assessing Authority on 10.8.1982 and furnished the details of other partners. In November, 1982, two partners namely Smt. Kaushalya Devi and Shri Hans Raj Bajaj appeared before the Assessing Authority and expressed their inability to produce the books of accounts. Finally, a notice dated 25.1.1983 was issued to the petitioner in the following terms :- "Assessment for the year 1974-75 is lying pending for finalisation for want of production of account/declaration if any by you. The records available before the undersigned show that you are deliberately adopting evasive tactics and are withholding accounts. Finally, a notice dated 25.1.1983 was issued to the petitioner in the following terms :- "Assessment for the year 1974-75 is lying pending for finalisation for want of production of account/declaration if any by you. The records available before the undersigned show that you are deliberately adopting evasive tactics and are withholding accounts. You are now given this final opportunity of appearing before the undersigned on 31.1.98 alongwith books of accounts or any other evidence, if any, in your possession in my camp office at Malout at 10 A.M. Please take notice that in case of non-compliance on your part, the assessment will be finalised by delaying GTO/TTO Rs. 60,00,000/-." 4. A copy of this notice has been placed as Annexure P-1 with the writ petition. No compliance was made in response to this notice either. The Assessing Authority, therefore, proceeded to frame the best judgment assessment by resorting to the provisions of Section 11(4) of the Act and determined the gross turnover at Rs. 60 lacs. A copy of this order is placed at Annexure P-2 with the writ petition. 5. Aggrieved by the assessment order, the petitioner filed an appeal before the Deputy Excise and Taxation Commissioner (Appeals), Ferozepur Division. The appeal was accompanied by an application for entertaining the appeal without prior payment of additional demand which had been created under the impugned assessment order. The Deputy Excise and Taxation Commissioner vide order dated 5.9.1983 declined the prayer on the ground that the appellant had failed to lead any evidence about the weak financial position of the partners. He, therefore, directed the petitioner to deposit the entire additional demand by 2.9.1983. It was made clear that if the deposit was not made by date and receipt not produced by 5.9.1983, the appeal would be dismissed in limine. A copy of the order of the Deputy Excise and Taxation Commissioner has been attached as Annexure P-4 with the writ petition. Since, the petitioner failed to deposit the tax by 2.9.1983, the appeal stood dismissed. 6. Aggrieved by the order of the Deputy Excise and Taxation Commissioner, the petitioner filed an appeal before the Sales Tax Tribunal, Punjab, Chandigarh. A copy of the order of the Deputy Excise and Taxation Commissioner has been attached as Annexure P-4 with the writ petition. Since, the petitioner failed to deposit the tax by 2.9.1983, the appeal stood dismissed. 6. Aggrieved by the order of the Deputy Excise and Taxation Commissioner, the petitioner filed an appeal before the Sales Tax Tribunal, Punjab, Chandigarh. The Tribunal vide order dated 13.9.1984 granted further time to the petitioner to deposit the entire tax by 7.11.1984 and thereafter appear before the Deputy Excise and Taxation Commissioner on 12.11.1984 along with proof of payment so that its appeal could be disposed of on merits. A copy of the order of the Tribunal has been attached as Annexure P-5 with the merits. A copy of the order of the Tribunal has been attached as Annexure P-5 with the writ petition. It is under these circumstances that the petitioner had filed the present writ petition praying that the orders, Annexures P-2, P-4 and P-5, be quashed and respondent No. 1 be restrained from recovering the demand in pursuance of the assessment order dated 31.1.1983, Annexure P-2. 7. The challenge to the best judgment assessment framed under Section 11(4) of the Act on 31.1.1983 is on the following two grounds :- (i) The assessment is barred by limitation as the Assessing Authority had not proceeded to make the best judgment assessment within five years from the end of the period for which the assessment was to be framed. (ii) the estimate of the gross turnover at Rs. 60 lacs is arbitrary being without any basis. The petitioner was never confronted with any material in support of the estimate. 8. A written statement has been filed by the Excise and Taxation officer-cum-Assessing Authority, Malout, on behalf of the respondents. In the written statement, it had been controverted that the gross turnover declared by the petitioner was Rs. 38,36,976.05. It was clarified that this was the turnover liable to sales tax only. There was also a turnover of Rs. 15,53,402.89 liable to purchase tax. Thus, the total turnover worked out to Rs. 53,90,378.94. The respondents also controverted the allegation that the notice on Form ST-XIV dated had not been properly served. 38,36,976.05. It was clarified that this was the turnover liable to sales tax only. There was also a turnover of Rs. 15,53,402.89 liable to purchase tax. Thus, the total turnover worked out to Rs. 53,90,378.94. The respondents also controverted the allegation that the notice on Form ST-XIV dated had not been properly served. It was pointed out that Ram Lal had not only signed the return for the year 1974-75 on behalf of the petitioner-firm but had also appeared before the Assessing Authority on behalf of Kaushalya Devi, partner of the firm, on as late as 17.11.1982. It was further pointed out that since the aforesaid notice dated 5.10.1978 had been properly served, the Assessing Authority can be said to have proceeded to frame the best judgment assessment on 5.10.1978 which was within the period of limitation, i.e. 5 years from 31.3.1975. 9. No replication to the written statement has been filed by the petitioner. 10. Mr. B.K. Jhingan, Advocate, appeared on behalf of the petitioner. He reiterated his stand that the impugned assessment order dated 31.3.1983 was barred by limitation. He fairly did not press his allegation that the notice dated 5.10.1978 on Form ST-XIV had not been properly served. However, his contention was that the said notice merely required the petitioner to furnish certain information in order to enable the Assessing Authority to frame the assessment. This could by no stretch of imagination be treated as the initiation of action by the Assessing Authority for framing the best judgment assessment under Section 11(4) of the Act. He referred to the scheme of the Act as contained in Section 11 in support of his contention. According to him in a case where returns have been filed, the Assessing Authority has the following options :- i) If he is satisfied with the returns, he can accept them and formally pass an order of assessment which means no more than that the appropriates the amount deposited by the dealer towards the tax. ii) If he is not satisfied with the returns, he can issue a notice under Section 11(2) of the Act calling upon the dealer to appear and produce evidence in support of the returns and after holding necessary enquiry, he can made an assessment under Section 11(3) of the Act. ii) If he is not satisfied with the returns, he can issue a notice under Section 11(2) of the Act calling upon the dealer to appear and produce evidence in support of the returns and after holding necessary enquiry, he can made an assessment under Section 11(3) of the Act. iii) In case, a dealer having furnished the returns fails to comply with the terms of notice issued under Section 11(2) of the Act, the Assessing Authority is empowered within five years after the expiry of the period in respect of which the returns are filed to proceed to assess to the best of his judgment. 11. Thus, according to the learned counsel for the petitioner, the scheme of Section 11 clearly shows that the Assessing Authority can proceed to assess to the best of his judgment only after a dealer had failed to comply with the notice under Section 11(2) of the Act. This, according to him, would mean that first there has to be a notice under Section 11(2) of the Act and it is only on the failure of the dealer to comply with this notice, that a notice showing the positive act on the part of the Assessing Authority to proceed to make a best judgment assessment can be issued. Thus, he contended that the notice dated 5.10.1978 was merely a notice requiring the petitioner to produce evidence in support of its return and it was only on 25.1.1983 when memorandum (Annexure P-1) was issued that the Assessing Authority could be said to have proceeded to assess to the best of his judgment. He relied on the judgment of the Apex Court in The Indian Aluminum Cables Ltd. and another v. Excise and Taxation Officer and another, (1977)39 S.T.C. 19, in which the three Judge Bench had reviewed the case law on the subject and it was held as under (as mentioned in the Head Note) :- "Sub-section (4) of Section 11 is attracted in a case where a dealer having furnished a return in respect of a period fails to comply with the terms of a notice issued under Sub-section (2). In such a case the Assessing Authority has to take within the period some effective step, such as issuance of a notice to the assessee intimating to him that he is proceeding to assess to the best of his judgment the amount of tax due from the dealer. On failure of a dealer to furnish a return in respect of any period by the prescribed date, the Assessing Authority after giving the dealer a reasonable opportunity of being heard can proceed to assess to the best of his judgment the amount of tax, if any, due from the dealer under Sub-section (5). In such a case also an effective step such as issuance of a notice to the dealer concerned showing that the Assessing Authority is proceeding to assess has got to be taken within 5 years of the expiry of the period concerned. Sub-section (6) is attracted in the case of a dealer who being liable to pay tax under the Act has failed to apply for registration. Similar steps as the ones to be taken under Sub-section (5) are to be taken under Sub-section (6) within a period of 5 years after the expiry of the concerned period. The expression proceed to assess and the word assess do not connote the same meaning. The expression proceed to assess in Sub-sections (4), (5) and (6) means taking some effective step towards proceeding to make the best judgment assessment in accordance with the Sub-section which may be applicable. Although for the issuance of a notice under Section 11(2) no time-limit has been fixed, the Assessing Authority must remain on its guard of taking the steps and completing the assessment as soon as it may be possible to do, because if the dealer fails to comply with that notice, the Assessing Authority may be obliged to take recourse to Sub-section (4) attracting the bar of limitation of 5 years for proceeding to assess on the best judgment basis." 12. Thus, on the basis of the abovementioned observations of the Supreme Court, the learned counsel for the petitioner argued that it is only the notice dated 25.1.1983 which can be considered to be an effective step taken by the Assessing Authority intimating the petitioner that he was proceeding to assess to the best of his judgment the amount of tax due from the dealer. This notice, according to him, was clearly beyond the period of limitation which had expired on 31.3.1980. 13. On the second issue, he submitted that the petitioner had never been confronted with the basis for estimating its gross turnover at Rs. 60 lacs which was a necessary prerequisite for making an estimate of turnover even in a best judgment assessment. He placed reliance on the decision of this Court in S. Sant Singh v. The Assessing Authority, Amritsar, and others, (1971)28 STC 567. 14. Ms. Gurveen H. Singh, learned Deputy Advocate General, appearing on behalf of the respondents controverted the claim made on behalf of the petitioner. According to her, the notice on Form ST-XIV dated 5.10.1978 duly contained the following lines :- "In the event of your failure to comply with notice I shall proceed to assess under Section 11 of the Punjab General Sales Tax Act, 1948 to the best of my judgment without further reference to you." 15. It is, therefore, contended that the Assessing Authority had clearly indicated his mind to the dealer that in case of failure to comply with the said notice, he shall proceed to assess under Section 11 of the Act to the best of his judgment "without any further reference to it.". Regarding the quantum of turnover estimated by the Assessing Authority, it was stated that the petitioner had incorrectly stated in the writ petition that the turn over had been assessed at Rs. 60 lacs against Rs. 38,36,976.05 declared in the return. The declared turnover was Rs. 53,90,378.94. It was further contended that it cannot be said to be without any basis. When a best judgment assessment is resorted to, there has to be an element of estimate. The gross turnover declared by the dealer for the immediately preceding year was Rs. 58,17,686/- and keeping that in view, the estimate of turnover at Rs. 60 lacs cannot be said to be excessive or without any basis. At any rate, it was further pointed out that the petitioner had been confronted with this estimate vide memorandum dated 25.1.1983 (Annexure P-1), to which there was no response from its side. If it had any grievance or doubt about the basis of assessment, it could have easily required the Assessing Authority to supply the same. At any rate, it was further pointed out that the petitioner had been confronted with this estimate vide memorandum dated 25.1.1983 (Annexure P-1), to which there was no response from its side. If it had any grievance or doubt about the basis of assessment, it could have easily required the Assessing Authority to supply the same. It was clearly mentioned that in case the petitioner did no comply with the earlier part of the notice requiring it to furnish books of accounts and other evidence in support of the return, the assessment would be finalised at a gross turnover of Rs. 60 lacs. 16. I have heard the rival contentions. As far as the issue of limitation is concerned, it should not detain me for long. This very issue had come up for consideration before a Division Bench of this Court in Milkhi Ram Sadhu Ram v. State of Punjab, (1997)104 STC 51, in which it was held that the notice issued on form ST-XIV indicates the mind of the Assessing Authority that in case of non-compliance on the part of the dealer, the Assessing Authority will proceed to assess to the best of his judgment without further reference to the assessee. The Division Bench has duly analysed the various judgments of the Supreme Court and of this Court which have been canvassed before me also. It is, therefore, unnecessary for me to go into those authorities. Respectfully following the dictum laid down in Milkhi Ram Sadhu Rams case (supra), I hold that the Assessing Authority had proceeded to assess to the best of his judgment when notice dated 5.10.1978 on Form ST-XIV had been issued. The said notice being well within five years from the period for which the assessment was to be framed, the assessment cannot be said to be barred by limitation. 17. Coming to the second issue about the reasonableness of the estimate of the gross turnover at Rs. 60 lacs, I find that the Assessing Authority has been more than fair. At the outset, it has been correctly pointed out that from a reading of the writ petition it had been projected that the gross turnover had been estimated at Rs. 60 lacs against the turnover of Rs. 38,36,976.05 as per the returns filed. 60 lacs, I find that the Assessing Authority has been more than fair. At the outset, it has been correctly pointed out that from a reading of the writ petition it had been projected that the gross turnover had been estimated at Rs. 60 lacs against the turnover of Rs. 38,36,976.05 as per the returns filed. This was factually incorrect as pointed out in the written statement, which has not been controverted, the retuned gross turnover was Rs. 53,90,378.94. In fact, this is also evident from ground No. III raised before the Deputy Excise and Taxation Commissioner, which reads as under :- "That the authority below further erred while making assessment at such a high figure as Rs. 60,00,000/- against Rs. 53,90,378/- as declared by the appellant which is without any proper material on the record." Further, another incorrect projection had been made in the writ petition in sub-para (iii) of Para-9, in which it had been stated that the gross turnover for the preceding year, i.e. assessment year 1973-74 was Rs. 43,58,294/-. This also had been controverted in the written statement and it had been pointed out that the gross turnover of that assessment year was Rs. 58,17,686/- and not Rs. 43,58,294/-. No replication has been filed to this averment in the written statement nor was any argument advanced before me to the contrary. Thus, the estimate of gross turnover of Rs. 60 lacs against the preceding years turnover at Rs. 58,17,686/- cannot be said to be excessive by any stretch of imagination. When a best judgment assessment is made, there has to be an element of estimate. In a case where a dealer fails to produce the account books and other evidence in support of the returns, the action of the Assessing Authority in estimating the turnover on the basis of the turnover of the preceding year cannot be faulted with. The decision of this Court in Sant Singhs case (supra) has no application in the facts and circumstances of this case. In that case the Assessing Authority, after rejecting the dealers application for adjournment, had straight away framed the assessment to the best of his judgment. The dealer was not confronted with the proposed estimate of turnover. The decision of this Court in Sant Singhs case (supra) has no application in the facts and circumstances of this case. In that case the Assessing Authority, after rejecting the dealers application for adjournment, had straight away framed the assessment to the best of his judgment. The dealer was not confronted with the proposed estimate of turnover. In the present case the Assessing Authority had duly issued the memorandum dated 25.1.1983 (Annexure P-1) notifying the petitioner that in case it did not avail of the opportunity to produce its accounts and other records on 31.1.1983, he would finalise the assessment at the gross turnover of Rs. 60,00,000/-. The petitioner neither produced the accounts nor objected to this estimate. In fact, it did not respond to the aforesaid notice at all. Thus no grievance can now be made against the estimate of turnover. 18. In the result, I find not merit in this writ petition, which is hereby dismissed. However, in the circumstances of the case, the parties are left to bear their own costs. Petition dismissed.