Reassessment during pending appeal must follow section 44's proviso; the assessing authority cannot act independently.

The second proviso to section 44 of the Gujarat Sales Tax Act, 1969 bars the assessing authority from independently making a further reassessment while an appeal or revision against the earlier reassessment is pending. If additional material emerges during that pendency, the department must use the statutory mechanism in the proviso by moving the appellate or revisional authority, after which that forum may pass such order as it deems fit and give the dealer a reasonable opportunity of being heard. The pendency of the appeal does not terminate reassessment proceedings, but it does require compliance with the prescribed procedure. On that construction, the second reassessment was invalid.

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Issues: Whether the second proviso to section 44 of the Gujarat Sales Tax Act, 1969 applied to a second reassessment made while an appeal against the first reassessment order was pending.

Analysis: Section 44 permits reassessment of turnover escaping assessment, and where proceedings in respect of such assessment are pending in appeal or revision, the appropriate appellate or revisional authority may, on its own motion or on the report of the Commissioner and after giving the dealer a reasonable opportunity of being heard, pass such order as it deems fit. The pendency of an appeal against the reassessment order did not terminate the reassessment proceedings. If further material comes to notice during the pendency of the appeal or revision, the sales tax department is not powerless, but the statutory procedure must be followed by making a report to the superior forum. This construction avoids repeated interference by the assessing authority and accords with the clear language of the proviso.

Conclusion: The second proviso to section 44 applies to a second reassessment when an appeal against the first reassessment order is pending, and the Tribunal was correct in holding the second reassessment invalid.

Ratio Decidendi: Where reassessment proceedings are pending in appeal or revision, the assessing authority cannot independently proceed with a further reassessment and must act through the mechanism provided in the second proviso to section 44.

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