1. The respondent (assessee) manufactured woollen felt. It was a dealer registered under the Central Sales Tax Act as also the M.P. General Sales Tax Act. Under the provisions of Section 42-B of the State Act the assessee had asked for an opinion. Thereunder, if any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner is required to make an order determining that rate and the order passed by the Commissioner is binding on the taxing authorities in all the proceedings under the State Act, except appeals. Pursuant to the assessee's request the Commissioner, on 7-8-1971, opined that the felt submitted by the assessee, being a woollen fabric, was exempt from tax under the State Act, Accordingly, for the Assessment Years 1971-72 to 1977-78, the assessee was not assessed to sales tax.
2. This Court, in Union of India v. Gujarat Woollen Felt Mills, came to the conclusion that felt such as that manufactured by the assessee was liable to excise duty. Based upon the judgment, the Commissioner, on 4-3-1982, wrote to the assessee that the clarification given to it in the letter dated 7-8-1991 was cancelled. The assessments of the assessee for the Assessment Years 1971-72 to 1977-78 were then revived under the provisions of Section 19(1) of the State Act and assessments of sales tax were made. The assessee challenged these assessments. The authority in statutory appeal upheld the assessments. The Board of Revenue, in second appeal, reversed the finding of the first appellate authority and the High Court upheld its view. The High Court analysed the provisions of Section 19(1) and emphasised that the power of reopening under that provision could be exercised only where an assessment had been made. No assessments for the relevant assessment years having been made, it held that the provisions of Section 19 were inapplicable.
3. The notices and subsequent proceedings under Section 19 are not on the record before us, but it is clear from what has been stated by the Board and by the High Court that the assessments that are under challenge were made upon the strength of the provisions of Section 19 of the State Act. The relevant portion of Section 19 reads thus: "Where an assessment has been made under this Act or any Act repealed by Section 52 and if for any reason any sale or purchase of goods chargeable to tax under this Act or any Act repealed by Section 52 during any period has been under assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess...."
It is crystal clear therefrom that it applies only if an assessment has already been made and there has been underassessment or escaped assessment therein. In a case where there has been no assessment, as in the case before us for the assessment years in question, the provisions of Section 19 do not apply and cannot be invoked.
4. Upon this ground alone, the appeals must be dismissed.
5. No order as to costs.