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TMI Blog1969 (11) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the assessment orders for the three years before the Appellate Assistant Commissioner and it was contended that the rejection of accounts was not justified and that the turnover estimated was excessive. The Appellate Assistant Commissioner upheld the rejection of the accounts but granted some relief to the petitioner by estimating the turnover on the basis of average monthly sales. Against this decision of the Appellate Assistant Commissioner, the assessee as well as the State appealed before the Sales Tax Appellate Tribunal. The Tribunal while sustaining the decision of the Appellate Assistant Commissioner regarding the rejection of the accounts, modified the order of the Appellate Assistant Commissioner regarding the turnover. The T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well-founded and has to be accepted. The Appellate Assistant Commissioner has not given any basis for arriving at the monthly sales and it is certainly open to the attack of being arbitrary and without materials. On the other hand, the method adopted by the assessing authority as well as the Appellate Tribunal is seen to have been adopted in the case of similar hotels and it is also pointed out that it was usual to arrive at the turnover by taking five times the working expenses in the case of other hotels. In support of this contention, counsel for the revenue brought to our notice the decision of the Mysore High Court in Rangappa Pandurang Kamath v. State of Mysore[1962] 13 S.T.C. 714., where the court has held that fixing the total t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness that he is carrying on business in that other commodity also." A careful perusal of the decision of the Supreme Court makes it clear that unless a person is carrying on business in the particular commodity sold, the turnover regarding that commodity cannot be assessed to sales tax. In this case, the petitioner is a hotel-keeper and his business consists in the sale of articles of food. He is not carrying on business in cow-dung and live-stock. The sales in respect of those commodities cannot be considered to be those in the course of business and they have merely been necessitated by circumstances, namely, that the petitioner had to maintain cattle for obtaining milk which was necessary for his hotel business. In this view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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