TMI Blog1962 (4) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... rries on two businesses, consisting of a lime works at Rajur and business in manganese ore at Nagpur. She made a composite return in respect of both these businesses for the period 7th November, 1953 to 26th October. 1934. and in support of her return, she produced account books separately maintained at Rajur and Nagpur. Now, in the case of the first of the two years of assessment. the Sales Tax Officer found that the accounts of the petitioner were not properly maintained and contained a number of incorrect and inaccurate entries. He pointed to two such inaccuracies in paragraph No. 2 of his order and then came to the conclusion: "Thus the accounts at Rajur are not reliable at all. The accounts at Nagpur were also checked................ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has come before this Court. The principal contention of Mr. Bobde on behalf of the petitioner has been that the revisional authority held that the Rajur accounts, so far as the lime business was concerned, were not regularly maintained but that, so far as the manganese business was concerned, the revisional authority had accepted those accounts. He relied upon the following passage occurring in paragraph 4 of the revisional order of the Assistant Commissioner of Sales Tax (Appeals), dated 28th April, 1961: "The accounts maintained by the firm are not found to be correctly maintained and as such there was sufficient justification for enhancing the sales but in respect of sales of manganese it was found that manganese account was properly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is susceptible of that construction and, even if it be susceptible, that the Assistant Commissioner of Sales Tax (Appeals) had any authority to do so, sitting in revision. It was a clear finding of fact given by the Sales Tax Officer and confirmed by the Assistant Commissioner, Sales Tax that the petitioner's accounts were not properly maintained and, therefore, not reliable, and the revisional authority would not have the jurisdiction to upset that finding which was one of fact. Thus the very basis of the contention raised in this petition in taken away. It was only on the assumption that the manganese accounts were found to be correctly maintained that the further argument could be advanced that the turnover in respect of the manganese b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78; [1958] S.C.R. 37 at p. 46. "No doubt it is true that when the returns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess; but the estimate must be related to some evidence or material and it must be something more than mere suspicion. To use the words of Lord Russell of Killowen again, 'he must make what he honestly believes to be a fair estimate of the proper figure of assessment' and for this purpose he must take into consideration such materials as the assessing officer has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of these penalties under section 16 of the Sales Tax Act has not been fulfilled. Under section 10(3) if a registered dealer fails to furnish his return for any period within the prescribed time to the prescribed authority without any sufficient cause, the Commissioner is empowered to impose a penalty not exceeding one-fourth of the amount of the tax which may be assessed on the assessee under section 11. It will be noticed that the power to levy a penalty is that of the Commissioner and no other officer. Section 16 deals with the power of the Commissioner to delegate his powers and the proviso to section 16 says: "Provided that if the power to impose penalty conferred upon the Commissioner by sub-section (3) of section 10......... is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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