Provisional assessment requires material showing tax evasion; bona fide legal dispute is not enough, and writ relief may still lie.

Provisional assessment under section 41B of the Gujarat Sales Tax Act could be invoked only on relevant material giving reason to believe that the dealer had evaded tax; a mere disputed legal view or bona fide non-payment did not meet that threshold. The Court also noted that the availability of an appeal did not bar writ jurisdiction under article 226 where the appellate remedy was onerous because it required payment of the full demand. The provisional assessments were quashed, with the matter left open for regular assessment under the normal statutory process and liberty to raise remaining contentions.

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Issues: (i) whether provisional assessment could be invoked under section 41B of the Gujarat Sales Tax Act, 1969 in the absence of material giving reason to believe that the dealer had evaded tax; and (ii) whether the availability of an appellate remedy barred exercise of writ jurisdiction under article 226 of the Constitution of India.

Issue (i): whether provisional assessment could be invoked under section 41B of the Gujarat Sales Tax Act, 1969 in the absence of material giving reason to believe that the dealer had evaded tax.

Analysis: The statutory precondition for provisional assessment was the existence of reason to believe, based on relevant materials, that the dealer had evaded tax. The orders did not record any factual basis showing evasion, and the authority proceeded only on a disputed legal view about taxability of the transactions. A mere disagreement with the assessee's bona fide understanding of the law did not satisfy the statutory threshold for invoking provisional assessment. The expression "evasion" was treated as importing deliberate avoidance of tax, not a case of bona fide non-payment based on a legal contention.

Conclusion: Provisional assessment under section 41B was not validly invoked, and the impugned assessments could not stand.

Issue (ii): whether the availability of an appellate remedy barred exercise of writ jurisdiction under article 226 of the Constitution of India.

Analysis: The alternative remedy was not an effective bar in the circumstances, because the appeal mechanism depended on payment of the full tax demand, making the remedy onerous. In such a situation, the writ court could exercise jurisdiction to grant relief against an order lacking jurisdictional foundation.

Conclusion: The writ petition was maintainable despite the alternate appellate remedy.

Final Conclusion: The provisional assessments were quashed and the matter was left open for regular assessment under the normal statutory process, with liberty to the assessee to urge remaining contentions there.

Ratio Decidendi: Provisional assessment can be invoked only when the statutory authority has relevant material giving reason to believe that tax has been evaded, and a mere contested legal view or bona fide non-payment does not amount to evasion.

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