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TMI Blog1969 (8) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... secondly, the dealer refused to allow his stock of goods to be examined by the Inspector and thirdly, the dealer had received consignments through rail and road which had not been duly accounted for. The dealer preferred an appeal against the order of the Assistant Superintendent of Sales Tax which was heard by the Deputy Commissioner, Commercial Taxes, Chotanagpur Division, who dismissed his appeal on 30th September, 1963. The dealer then preferred an application in revision to the Board of Revenue, Bihar, and as by that time the Commercial Tax Tribunal had been constituted under the Act, so the revision was heard by the aforesaid Tribunal and it was rejected. The findings of the Tribunal were to the effect that the dealer was maintaining duplicate sets of accounts, that he prevented the Inspecting Officer of the department to inspect his stock of goods in the business place and that he had not accounted for certain goods received by him through rail and road. 3.. The dealer thereafter filed an application before the Tribunal for referring the questions of law to the High Court. In the application which was submitted to the Tribunal as many as ten questions were framed, but at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bogus one and that even conceding that the question involved primarily a question of fact, but it became a question of law as there was no evidence to support the finding. In my opinion, a question of fact becomes a question of law if the finding is either without any evidence or if the finding is contrary to the evidence. I may in this connection refer to a decision of the Supreme Court in Raghubar Mandal Harihar Mandal v. The State of Bihar[1957] 8 S.T.C. 770., and it was held that the jurisdiction of a High Court in the matter of income-tax reference, which is similar to a reference under the Sales Tax Act, is an advisory jurisdiction, and the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusion on facts recorded by the Tribunal or the conclusion was such that no reasonable body of persons could have arrived at such a conclusion. In this view of the matter, it seems necessary to go into the evidence to see if there was really evidence about the receipt of consignments from rail and as to what the actual findings were in this connection. It may also be mentioned here that the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore me, a letter from the Station Master, Chaibassa, to show that 110 bags of gram as per first item of assessment order, was delivered to one Jawara Trading Co. and the invoice number and date is 13/23-4-60 instead of 12/23-4-60. This letter further shows that against invoice number M.1/ 29-10-60, 250 bags of flour were received instead of 240 bags and they were delivered to Lunkaran Das Manilal. So far the two transactions are concerned, I have no hesitation in accepting the appellant's contention on the basis of the Station Master's letter. The receipt of other three items were denied by the appellant. The last two items cover motor parts and it was stated that the appellant never dealt in these commodities. I fail to understand why the appellant could not get a certificate of non-receipt of these goods from the Station Master, Chaibassa, as in the case of the other two items. Moreover, the receipts of goods were again verified under orders of my predecessor and in two cases receipts were confirmed: vide Inspector's report attached on this record. Under these circumstances it is clear that these receipts have been suppressed from the appellant's accounts." 7.. It will, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignments for the reasons given by him. 8.. It may also be mentioned here that the returns of the subsequent years had also been filed in which higher G.T.O. had been shown by the dealer, but from this no positive inference can be drawn because no doubt, it can be said on the one hand and the returns in the subsequent years show that the authorities were justified in raising G.T.O. in question by thirty per cent., but it can also be said with equal force on behalf of the dealer that in the years in which there were larger G.T.Os., they have shown the same. 9.. In the matter of assessment by best judgment it is not at all possible to lay down any scale or the precise manner in which the G.T.O. can be raised for the purpose of assessment. But, of course, it should not be on mere suspicion or in an arbitrary manner as held by the Supreme Court in the case of Raghubar Mandal Harihar Mandal v. The State of Bihar[1957] 8 S.T.C. 770. In making assessment the Sales Tax Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a court of law, but he is not entitled to make a pure guess and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to all the consignments and it has been urged that there was no counter-affidavit, but the question whether the affidavit in the circumstances could or could not be believed by the authorities was a matter within their discretion and is just like an acceptance or rejection of an oral evidence. If the authorities have not believed the affidavit, then no question of law arises. In view, however, of the findings which I have quoted above of the Deputy Commissioner as well as of the Commercial Tax Tribunal, at least two of the consignments had not been received by the dealer, but it appears from their orders that in raising the gross turnover by thirty per cent. this aspect of the matter had not been taken into consideration, whether there should be a proportionate scaling down because these two consignments definitely on the evidence and the findings had not been received by the dealer. This would be a matter completely within the discretion of the authorities, but as this aspect of the matter was not considered, so these two questions can be answered only in this way that the increase of the G.T.O., in the circumstances, was quite justified by the authorities, but they fail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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