Decided on December 17,1965



DESAI, J. - (1.)THIS is a case stated by the Judge (Revisions), Sales Tax, U.P., under section 11(1) of the U.P. Sales Tax Act. The question that we have to answer is :-
"Whether in the circumstances and facts of the case, the taxable turnover determined at Rs. 4,00,000 was just and proper."

(2.)THE facts are as follows : The assessee carries on business in cloth and is liable to pay sales tax on the turnover of sale of imported cloth. For the assessment year 1956-57 it submitted a return disclosing the turnover of imported cloth of Rs. 2,44,000 and odd. The Sales Tax Officer found that it had concealed the importing of thirteen bales of cloth and rejected the return and the accounts. He then fixed the turnover at Rs. 4,00,000 according to the best of his judgment and assessed it accordingly. It filed an appeal, which was partly allowed by the Judge (Appeals). The Judge (Appeals) held that the turnover of the suppressed bales was at the most Rs. 15,000, accepted the returned turnover as the correct turnover of the disclosed sale and adding the two amounts determined the amount of the taxable turnover at Rs. 2,60,000. The Sales Tax Commissioner and the assessee both applied to the Judge (Revisions) to revise the order of the Judge (Appeals). The Judge (Revisions) who dismissed the revision application of the assessee and allowed that of the Sales Tax Commissioner, held that the approach of the Judge (Appeals) was erroneous because it could not be said that suppression of the sale of thirteen bales was the only suppression practised by the petitioner, saw no reason to hold that the estimate of the Sales Tax Officer was not the best according to his judgment and restored this order. Then at the assessee's instance he submitted this statement.
In the associated references the Judge (Revisions) has submitted similar statements of cases at the instance of the assessees and the question referred in each is exactly the same as in Sales Tax Reference No. 271. The assessees in both the associated references as businessmen in cloth and the question is for the assessment year 1956-57. In both there were suppressions of bales of cloth, the returns and the accounts of the assessees were rejected by the Sales Tax Officer and he estimated their turnovers according to the best of hid judgment. Both the assessees filed appeals before the Judge (Appeals), who allowed them in the same way as he allowed the appeal in Reference No. 271. In both he fixed the amounts of the turnovers by adding to the returned turnovers the estimated turnovers of the suppressed bales. In both there were revision applications by the assessees and the Sales Tax Commissioner; the applications of the assessees were rejected by the Judge (Revisions) and the Sales Tax Commissioner's applications were allowed. In both the Judge (Revisions) restored the orders of the Sales Tax Officer adopting the reasons as in reference No. 271.

(3.)WE shall deal with Reference No. 271 of 1963 and whatever we say applies with equal force to the associated references. The question framed by the Judge (Revisions) is not proper; it is not a question of law or exclusively of law. What is correct or legal depends upon the law applicable to the facts but what is just and proper depends upon the judgment or discretion of the authority and not upon law, and certainly not exclusively upon law. Everything that is legal is not necessarily just and proper. Anything that involves discretion or judgment is a question of fact and not of law. The turnover has been assessed under section 7(3) according to the best of the judgment of the Sales Tax Officer; what is the turnover according to the best of his judgment is a question of fact. By the law he was required to assess it according to the best of his judgment and what he thought was the turnover according to the best of his judgment was the turnover which could be assessed by him under the law. It was, therefore, undisputedly the turnover as estimated by him according to the law. By the very premise that it was the turnover according to the best of his judgment it meant that it was also just and proper. That he had to estimate the turnover according to the best of his judgment was a matter of law; what the turnover was according to the best of his judgment was a matter of fact. The question that has been framed is whether the turnover estimated by him was according to the best of his judgment or not and it was essentially a question of fact.

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