45. Provisional assessment 

(1)        Where a dealer required to furnish return for a period under sub-section (1) of section 32,-

(a)        fails to furnish such return; or

(b)        furnishes such return but fails to make an application to the Commissioner for extension of date of payment, of the unpaid amount of net tax and interest if any, as referred to in the first proviso to sub-section(2) of section 32; or

(c)        furnishes such return but fails to make payment of net tax or interest thereon in accordance with the terms and conditions and within such time as may be specified by the Commissioner as referred to in the first proviso to sub-section (2) of section 32; or

(d)        furnishes such return but fails to make payment of the unpaid amount of net tax or interest and where the Commissioner has rejected his application for extension of date of payment as referred to in the first proviso to sub-section (2) of section 32,

the Commissioner or any other person appointed under sub-section (1) of section 6 to assist him, may, notwithstanding anything contained in section 46, proceed to assess the dealer provisionally for that period:

PROVIDED that no provisional assessment under this section in respect of a return period shall be made following the expiry of six months from, the prescribed date for furnishing such return or the extended date for making payment of net tax, as the case may be:

PROVIDED FURTHER that in computing the time limit as specified in the first proviso for making any provisional assessment under this section, the period during which the Commissioner is restrained from commencing or continuing any proceedings from such provisional assessment by an order of a tribunal or any court, shall be excluded.

(2) In making a provisional assessment under this section, the Commissioner or other authority as referred to in sub- section (1), shall—

(a) where the dealer has failed to furnish return, assess the net tax of the dealer for the relevant return period on the basis of past returns or past records, and where no such returns or records are available, on the basis of information received by the Commissioner or such other authority, and determine the interest payable by the dealer for the relevant return period; or

(b) where the dealer furnishes return but fails to make an application to the Commissioner, or fails to make payment of the net tax or interest, and late fee as referred to in sub-section (2) of section 32, or fails to make payment of the unpaid amount of net tax , interest, and late fee as referred to in sub-section (2) of section 32 as mentioned in clause (b), clause (c) and clause (d), respectively, of sub-section (1), assess the net tax on the basis of return furnished and determine the interest payable or unpaid amount of interest, for the relevant period, and impose a penalty not exceeding twice the assessed amount of net tax or the unpaid amount of net tax, as the case may be, and fix a date for production of documentary evidence for removing the cause for making the provisional assessment under sub-section (3), and shall direct the dealer by a notice to pay the assessed amount of net tax or the unpaid amount of net tax, as the case may be, with the interest payable or remaining unpaid and penalty imposed, in such manner, and within such date, as may be prescribed.  

(3) If the dealer produces documentary evidence on or before the date fixed under sub-section (2) for removing the cause for which the provisional assessment has been made under sub-section (2), the authority mentioned in sub-section (1) shall close the proceedings initiated under this section and the provisional assessment made under sub-section (2) shall stand revoked.

(4) Where the dealer fails to take action in accordance with the provisions of sub-section (3) after receipt of demand notice issued under sub-section (2), but –

(a) furnishes the return along with receipted copy of challan showing full payment of the net tax according to such return and the interest payable thereon, for the period in respect of which provisional assessment has been made under sub-section (2), and also submits receipted copy of challan showing payment of a sum equal to twenty per centum of the amount of net tax paid, or five thousand rupees, whichever is higher, by way of penalty, on or before the date fixed for payment of the amount demanded in the demand notice, the Commissioner or such other authority mentioned in sub-section (1) shall close the proceedings initiated under this section and the provisional assessment made under subsection (2) shall stand revoked; or

(b) furnishes receipted challan showing full payment of the net tax, the interest payable according to the demand notice and fifty per centum of penalty demanded in such notice, on or before the date fixed for payment of the amount specified in such demand notice without furnishing the return, the provisional assessment made under subsection (2) shall stand revoked to the extent of demand of net tax, interest and balance fifty per centum of penalty.]

(5) Nothing contained in this section shall prevent the Commissioner from making assessment under section 46 and any net tax or interest paid, and penalty paid in excess of the fifty per centum of the amount of penalty imposed against provisional assessment or assessments, as the case may be, shall be adjusted against net tax and interest payable on assessment made under that section.