BANERJEE, J. - (1.) THIS is a reference under Section 21(1) of the Bengal Finance (Sales Tax) Act, 1941. The section is analogous to Section 66 of the Indian Income-tax Act. The question formulated for our opinion is in these words :- "Whether on the facts of the case the respective assessments by the Assistant Commissioner of Commercial Taxes so far as the same has not been modified in appeal and by the Commissioner of Commercial Taxes in appeal after allowing the deduction have been made to the best of their respective judgment ?"
(2.) THE applicants before us are registered dealers and are required to file returns quarterly. A registered dealer has to file a return under Section 10 of the Act. The applicants maintain their accounts according to the Marwari Dewali year. They did not file their returns for the two quarters ended Kartic Badi 15, 2002 (corresponding with the period 13th April, 1945, to 4th November, 1945). The assessing authority, namely, the Assistant Commissioner of Commercial Taxes, Calcutta (Central), issued a notice on 20th February, 1946, directing the applicants to attend in person or by an agent at the office of the Commercial Tax Officer and there to produce, or cause there to be produced, at the time mentioned in the notice, the accounts and documents specified in the notice for the purpose of assessment, together with any objection which the applicants might wish to prefer and any evidence which they might wish to adduce in support thereof. The notice further intimated to the applicants that in the event of their failure to comply with the notice, the Tax Officer would proceed to assess under Section 11 of the Bengal Finance (Sales Tax) Act, 1941 to the best of his judgment without further reference to them. On 15th April, 1946, the applicants appeared before the Tax Officer through a lawyer and prayed for an adjournment. That adjournment was granted. It appears that adjournments were taken from time to time by the applicants, till on 6th November, 1947, they by their lawyer represented to the Tax Officer that they were not in a position to comply with the requirements of the notice; that their books of account had been looted and destroyed during the communal disturbances in Calcutta. The Assistant Commissioner of Commercial Taxes assessed the dealers to the best of his judgment by his order, dated 15th April, 1948. He estimated the gross turnover of the applicants at Rs. 20 lacs per quarter and the taxable turnover at ten per cent. of the gross turnover, and the final notice of assessment under Section 11 of the Act was served on the applicants.
(3.) AGAINST this assessment order the applicants filed an appeal before the Commissioner of Commercial Taxes. They also filed two other appeals before the Commissioners against the assessment orders in respect of the four subsequent quarters. The Commissioner, by his order, dated 28th October, 1948, dealt with all the three appeals together and in exercise of his powers under Section 20(2) of the Act, reduced the assessment in respect of the two quarters in question (i.e., for the period from 13th April, 1945, to 4th November, 1945) by estimating the taxable turnover at 7.5 per cent. of the gross turnover, instead of at ten per cent. as estimated by the Assistant Commissioner.;