Registration delay does not equal failure to register where the dealer made a bona fide application and assessment power existed.

A dealer is not treated as having "failed to get himself registered" merely because registration was completed after an application was made and statutory enquiries took time. The Calcutta HC read section 11(2) of the Bengal Finance (Sales Tax) Act, 1941, as operating where a dealer takes no steps to obtain registration, not where the delay is attributable to the authority after a bona fide application. It also held that a mistaken resort to section 11(2) did not by itself negate assessment power where tax liability had already arisen once turnover crossed the taxable quantum. Relief under Article 226 was not refused merely because a formal appeal was not pursued.

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Issues: Whether the assessment made under section 11(2) of the Bengal Finance (Sales Tax) Act, 1941, was without jurisdiction because the dealer had applied for registration and the certificate was issued later, and whether relief under Article 226 of the Constitution of India should be refused on the ground of availability and lapse of the statutory remedy.

Analysis: Liability to tax had arisen once the dealer's turnover exceeded the taxable quantum under section 4(2) of the Bengal Finance (Sales Tax) Act, 1941. The expression "failed to get himself registered" in section 11(2) was construed to mean a dealer who takes no steps to obtain registration; where a dealer applies for registration and the authority requires time to make the statutory enquiries under section 7(3) of the Bengal Finance (Sales Tax) Act, 1941, read with rule 5 and rule 6 of the Sales Tax Rules, the time taken to complete registration does not by itself establish failure to register. On the facts, the initial application was defective and the regular application was filed only later, so the authority had not acted with unreasonable delay in issuing the registration certificate. The Court also held that the petitioner's conduct in seeking review under section 20(4) of the Bengal Finance (Sales Tax) Act, 1941, and the circumstances surrounding that remedy did not disentitle it to relief merely because a formal appeal was not pursued. The use of section 11(2) was treated, at most, as a procedural matter and not as absence of power to assess.

Conclusion: The assessment under section 11(2) was upheld and the writ petition was dismissed.

Ratio Decidendi: A dealer is not said to have "failed to get himself registered" merely because registration is delayed by the authority after a bona fide and regular application, but where the dealer is liable to tax and the statutory assessment power exists, a mistaken resort to the wrong procedural provision does not vitiate the assessment for want of jurisdiction.

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