Salil Kumar Datta, J. - (1.) This is an appeal against the judgment and order of Chittatosh Mookerjee, J. dated March 9, 1972 discharging Civil Revision No. 6437W/68. The facts according to the petitioner are as follows: The petitioner is the proprietor of a Hotel and Restaurant carrying on business of licensed bar and restaurant. The petitioner is registered under the Bengal Finance (Sales Tax) Act 1941, the relevant registration certificate, being No. SL/332 A. The petitioner sells for consumption of Indian and foreign liquors as also food to consumers at the said place and very rarely sells soft drinks in sealed bottles and containers on which sales tax is paid. The petitioner supplies free aerated, mineral or soda water to consumers of drinks and salad to consumers of food for which no charge is made. The petitioner also supplies cooked food not exceeding Rs. 1.50 to customers against vouchers and cash memos kept in the usual course of business. The respondent No. 1 Commercial Tax Officer, Sealdah charge (herein referred to as Commercial Tax Officer) for the year ending in December 1964 disbelieved the sale vouchers relating to cooked food and by order dated May 14, 1968 in Case No. 84 of 1965-66 added back Rs. 10,000/- to taxable sales on the ground that the said amount related to sales of cooked food effected to persons at a time and exceeded Rs. 1 50 in each transaction. The petitioner contended that the order of assessment was illegal, arbitrary, malafide and against the principles of natural justice and also' in contumacious disregard of observations made by this Court in another civil rule. This assessment was based on suspicion and conjecture and all documents having been produced the onus of proving taxability lay on the authorities which was not discharged. On these allegations the petitioner moved this Court by an application under Article 226 (1) of the Constitution and the connected rule was issued calling upon the respondents to show cause why a writ in the nature of Certiorari should not issue quashing the impugned order and proceedings and also why a writ of Mandamus should not issue forbearing the respondents from giving effect to the same.
(2.) The respondents contested the Rule and an affidavit-in-opposition was filed by the Commercial Tax Officer denying the material allegations. It was stated that the petitioner as a supplier of cooked food was entitled to purchase free of tax soda, aerated or mineral water for sale, as also cooking materials against declaration forms. The petitioner did not pay sales tax on lime juice supplied to customers which were separately charged. Charges for supply of aerated mineral or soda water to drinkers were included in the price of drinks. The petitioner's use of declaration forms were not recorded in the records of the office. The petitioner in his return for the year ending with December 1964 showed the gross turn over at about Rs. 3.79 lakhs claiming exemption for about Rs. 3-78 lakhs taxable sale, being Rs. 1088-73 for mineral water. It was found on examination of books of account that lime juice cordial was sold for Rs. 982/86 p. and sale was estimated at Rs. 1100/-. In regard to cooked food manufactured and sold no books of account were produced to show manufacturing and production account nor quantitative details were furnished nor menu or price list even were produced. The return accordingly was held as incorrect and the gross turnover was enhanced by Rs. 10,000/- over book figure which was added back to the taxable sales. The cash memos did not bear any particulars about the customers and could not be verified. The petitioner preferred no appeal against this assessment order and accordingly the application was not maintainable in law. It was denied that there was any contumacious observation regarding the judgment of this court and the directions given therein were fully honoured. It was submitted that the assessment was reasonable, proper bonafide and valid and in consonance with the principles of natural justice. It was further submitted that proper accounts were not maintained nor produced and onus for exemption for taxability was on the petitioner which was not discharged. For these reasons it was submitted that the petitioner was entitled to no relief. It appears that there was no affidavit-in-reply against this affidavit filed by the petitioner.
(3.) By his judgment the learned Judge held that the assessment was made after hearing the petitioner. The respondent No. 1 had given reasons why he did not accept the assertion of the petitioner that mineral waters were supplied free with drinks. There was no error of jurisdiction nor any error patent on record. The same applied to cooked food and as according to the Commercial Tax Officer petitioner did not submit correct return he was free to make honest guess work and he took into consideration past records. There was no error of jurisdiction or any basis for allegation that action was arbitrary or malafide. Further there was no contumacious observation with regard to the judgment of this Court in the other Rule. It was further found that the dispute related to the quantum and no question of principle was involved nor was there any explanation why the remedies under the Act were not availed of. The Court was of opinion that the petitioner should have availed of the remedies under the Act which provided adequate remedies. The Rule accordingly was discharged. The propriety of this order is challenged in this appeal.;