TMI Blog1951 (3) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 30th September, 1945. A copy of the assessment order dated 30th September, 1947, is enclosed (Exhibit A). The assessee then filed on 27th November, 1947 an appeal before the Commissioner of Sales Tax, Patna Division, who by his order dated 9th March, 1948, upheld the order of the Sales Tax Officer. Copies of the petition dated 27th November, 1947, and of the Commissioner's order dated 9th March, 1948, are enclosed (Exhibits B C). The assessee then filed on 23rd April, 1948, a revision petition before the Board of Revenue, Bihar, against the order of the Commis- sioner but the same was rejected by the Board by its order dated 6th August, 1948. Copies of the revision petition dated 23rd April, 1948, and of the Board's order dated 6th August, 1948, are enclosed (Exhibits D E). The assessee then filed on 5th October, 1948, another petition before the Board of Revenue for reference on three questions of law. A copy of the petition dated 5th October, 1948, is enclosed (Exhibit F). The Board heard the parties on 4th December, 1948, and by its order dated 7th December, 1948, rejected the petition for reference. Copy of the order is enclosed (Exhibit G). In the opinion of the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew and so this estimate could be more appropriately applied to this quarter than the previous one. The court of appeal and the court of first revision did not consider this estimate to be unreasonable. In any case, the determination of the quantity of sale is a question of fact and not of law. P.R. Das, Gopal Prasad, Balbhadra Prasad Singh, Bindabashni Prasad Sinha, S.N. Mitra and T.K. Prasad, for the assessee. Government Advocate with R. Prasad, for the State. JUDGMENT. RAMASWAMI, J.-This reference is made by the Board of Revenue under Section 25(3) of the Bihar Sales Tax Act. The material facts are that for the quarter ending 30th of September, 1945, the assessee was taxed under Section 10 of the Act on a total taxable turnover of Rs. 5,88,000. The assessee preferred an appeal before the Commissioner of Sales Tax who by his order dated 9th of March, 1948, upheld the assessment made by the Sales Tax Officer. The assessee then moved the Board of Revenue against the order of the Commissioner but his petition was rejected by the Board by its order dated 6th of August, 1948. In pursuance of the order of the High Court, dated 14th of January, 1949, the Board of Revenue has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment made by his predecessor Parmeshwar Dayal. It was contended that the assessment was therefore not legal. In my opinion there is no sub- stance in the argument. It is true that the Sales Tax Officer referred to the fact that Parmeshwar Dayal had placed on reliance on the account books while making assessment for the previous quarters. But in addition to this circumstance the order of the Sales Tax Officer shows that he has taken other matters into consideration. In the first place he referred to the fact that in a petition dated 24th October, 1945, more than three weeks after the expiry of the quarter in question the assessee had asked for three months' time for writing out pucca books of accounts. It was not of course incumbent upon the assessee to writ out pucca books of account from day to day but the unusual delay made by him in preparing these pucca books is certainly a circumstance which the Sales Tax Officer was entitled to take into consideration in holding that the books of accounts produced before him in 1947 were not genuine. It is material to note that the finding of the Sales Tax Officer has been affirmed by the Commissioner and the Board of Revenue. It follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne it was certainly open to the Sales Tax Officer, indeed it was his duty, to make assessment for the period in question under Section 10(3) of the Sales Tax Act to the best of his judg- ment. The second question is whether there are any legal materials to justify the finding that the average sale of the assessee was Rs. 8,000 per day. In my opinion this question also must be answered in the affirmative. The Sales Tax Officer has said that he had "several occasions to visit the dealer's shop besides passing in front of it almost twice a day". Taking everything into consideration, the situation of the shop, the rush of the customers and the stock in the shop and also the estimate made by the Assistant Commissioner for the previous quarters, the Sales Tax Officer came to the conclusion that the average sale of the assessee was Rs. 8,000 per day for the period in question. It is not stated on behalf of the assessee that the Sales Tax Officer had acted mala fide. The only argument addressed on his behalf is that there was no adequate evidence on which the assessment could be based. This, in my opinion, is hardly a question of law. Ex hypothesi an assessment under Section 10(3) must b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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