- (1.) THIS revision has been preferred against the order of the Deputy Commissioner, Sales Tax (Appeals), Jodhpur dated 20th November, 1961 Brief facts of the case are that the assessee-applicant deals in the sawing of stones. No returns having been submitted by him a notice was given requiring him to submit his accounts. No accounts were submitted. Only two bill-books were produced. The learned Sales Tax Officer after examining these books held them to be not reliable. He examined the assessee and his brother and found that the replies by Sri Ibrahim, the brother of the applicant, were very evasive. He then made enquiries through the Sales Tax Inspector concerned and found that the turnover of the sawing of stones of the applicant for the year 1956-57 (the year of assessment) ranged between Rs. 9000/- and Rs. 10,000/- on the basis of this he estimated the total taxable turn over of the applicant to be Rs. 30,000/- according to the best of this judgment and also imposed a penalty. THIS was challenged by the applicant in appeal. The learned Deputy Commissioner examined the case and observed as follows: - "it is obvious from the statement of the appellant himself on the record that during the year under appeal he had been owning quarry No. 294/7 and that his brother and nephew had no other quarries in their name. Moreover, it has also been stated by him (appellant) in his statement dated 27. 3. 61 made at the time of assessment that he has been getting the Chirai of the stones done by cash payment as well as by payment in the shape of half quantity stones. It is also a point for consideration that when the appellant had been issuing sale bills, he could not have maintained any accounts of the Chirai charges paid by him to the different factory owners. As is clear from the record of the lower court there was only one business premises for which the appellant says that the goods within that premises belongs to his brothers and nephew which is hardly believable in view of the fact that his brothers and nephew had no other quarries in their names as well as they arc not found to have any separate registration certificate, for stone business. One thing for which I take a serious notice regarding the appellant is that while in his statement referred to above it is stated that the quarry was closed only a year back while in his affidavit before me filed on 27. 6. 61 the quarry was stated to remain closed in the year 1956-57. "after thoroughly considering the whole position I do not feel any justification for interfering with the assessment order passed by the lower court and reject the ground for excessiveness or arbitrariness in the best judgment assessment in the absence of maintaining any proper and reliable accounts by the appellant. "
(2.) IN this revision the facts of the case are not at all contested by the applicant. What is contended is that the Sales Tax INspector had submitted two reports and the learned Sales Tax Officer had relied on the one and not the other. We have examined the record and we do not find that it is so. No contradictory reports have been submitted by the Sales Tax INspector. Rather in all his reports he has tried to give certain information about the dealings of the applicant and after making enquiries he has submitted that the accounts of the sawing of stones done by the applicant amount to Rs. 9000/-, It has been further contended on behalf of the applicant that the assessment has been finalised on the same date without letting the applicant have on opportunity of proving his case or letting him a notice of the action against him. Now, vide section 10 (4) (b) of the Rajasthan Sales Tax Act 1954 (hereinafter referred, to as the Act) a dealer can be assessed to the "best of judgment", also if he has not been found to have regularly employed any method of accounting or if the method employed is such that, in the opinion of the assessing authority, assessment cannot properly be made on the basis thereof. The learned counsel for the applicant is contemplating the present case to be the case under sub-clause (a) of this section and not sub-clause (b) of this succession. The question of giving any notice under sub-section (2) of this section 10 arises only when the returns have been submitted vide sub-clause (b) of sub-section (1) of this section 10 and have been found to be incorrect and incomplete. It does not come into application if returns have not at all been submitted. In case where there has been a failure to submit the returns themselves, it would be sub-clause (b) of sub-section (4) of section 10 of the Act that would apply and not sub-clause (a ). It is not denied in the present case on behalf of the applicant, and on the other hand is rather conceded, that no returns were submitted by the applicant. It is also conceded that no method of accounting had been regularly employed. It cannot also be denied that the method employed was such that in the opinion of the assessing authority, assessment could not properly be made on the basis thereof. All these factors having been established, the Assessing Authority the learned Sales Tax Officer had no option but to proceed to on the best of his judgment. Now, an assessment on the best of judgment must necessarily be guess work. Only it must be an honest guess work. The Assessing Officer should not act dishonestly, vindictively or capriciously, but he must exercise his judgment in the matter. He has to make what he only believes to be a fair estimate of the proper figure of assessment and for this purpose he must be able to take into consideration the local knowledge and repute in accordance with to the assessee's circumstances; In Anwari Hotel Vs. State of Mysore, the High Court has held that "if the Commercial Tax Officer, who was proceeding to assess the petitioner according to his best of judgment had proceeded to base his estimate on the basis that his turnover should have been five times the working expenses of the firm, it would not be open to contend that such an order was illegal or it cannot be supported. " This should be enough to meet the further contention on behalf of the applicant that the total turn over should have been estimated to be double the sawing charges and not treble as has been done by the learned Sales Tax Officer. If the learned Assessing Authority has found that the accounts have not been regularly kept and that on the basis of the accounts produced it was not possible to make an assessment he was at liberty to make the best of judgment assessment. While making so he could make use of the enquiries made by him even confidentially and through his subordinates as well as the condition and circumstances of the dealings. In this particular case it is what has been done and therefore the assessment made cannot be allowed to be questioned successfully. There is thus no force in this revision which is hereby rejected. .;