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TMI Blog1974 (5) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... its letter of 15th July, 1968, asked for an adjournment of hearing on the ground that the relevant account books were spoilt by heavy monsoon and they were to be reconstructed. The said letter was received on 15th July, 1968, but the C.T.O., however, wrongfully and mala fide refused to grant the adjournment and made a "best judgment" assessment on the day fixed. It was stated in the order: "Having regard to the nature of business I estimate the dealer's gross turnover at Rs. 50,000. I further estimate inter-State turnover at Rs. 30,000. Hence the taxable sale of the dealer is assessed at Rs. 20,000." Allowing a deduction, the taxable turnover under the Bengal Act was determined at Rs. 19,050 and the tax thereon was assessed at Rs. 952.50. Under the Central Sales Tax Act, the taxable turnover was determined at Rs. 30,000 and tax payable was assessed at Rs. 3,000. Forms VII and 4 respectively under the two Acts were directed to be issued accordingly. The petitioner received on 1st August, 1968, two notices of assessment under the two Acts. The petitioner contends that the said assessment was made arbitrarily without reference to evidence on record and against the principle of justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of assessment dated 18th July, 1968, and also for a writ in the nature of certiorari quashing the two certificates, referred to above. On this application, a rule nisi was issued in terms of the prayer and an ad interim injunction was granted restraining the respondent from taking further action provided the petitioner deposited with the Registrar, A. S., a sum of Rs. 2,000 and it is said that the said amount had been so deposited. On service of the rule, the respondents appeared and contested the rule and an affidavit-in-opposition was affirmed on 29th March, 1973, by Dilip Roy Chakraborty, an officer in the Office of the Certificate Officer, 24-Parganas, on his behalf denying the allegations and contentions made in the petition. Mr. Bhaskar Gupta, the learned Advocate appearing for the petitioner, raised various contentions in support of the rule. He submitted that the impugned assessment was arbitrary, whimsical and based on no materials. Even in "best judgment" assessment, the authority is required to make a fair estimate with reference to previous returns and attendant circumstances. Provisions of section 11(1) of the Bengal Finance (Sales Tax) Act, 1941, are similar to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must, their Lordships think, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by and assessments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guess-work in the matter, it must be honest guess-work." The proposition of law laid down above is well-settled and has not been disputed by Mr. R.L. Sinha, the learned Advocate appearing for the respondents. The provisions of the Bengal Finance (Sales Tax) Act, 1941, are almost in similar terms with those of the Income-tax Acts and accordingly the principles laid down by the judicial decisions of the high authorities in respect of best judgment assessments under the Income-tax Acts apply with full force and effect in respect of such assessments under the sales tax law in West Bengal. It will, however, appear that the provisions in the Income-tax Act, requiring the Income-tax Officer to take into account all relevant materials he has gather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional writs. Further in the facts of the case, the relief should be granted to the petitioner, particularly when the order is arbitrary and in direct contravention of the provisions of law. The Bengal Finance (Sales Tax) Act, 1941, provides an elaborate and adequate remedy providing for appeal against, and revision and also review of, any order of assessment under the Act. Such appeal, revision or review will have to be filed within sixty days from the receipt of notice of demand in respect thereof or such further period as may be allowed by the prescribed authority. Rule 74 provides that an appeal against the order of the Commercial Tax Officer will be to the Assistant Commissioner and the memo of appeal, under rule 76, must be accompanied by a certified copy of the order complained of. Rule 77 provides that for non-compliance of some other provisions of rule 76, inter alia,-deposit of the admitted taxthe appeal will be summarily rejected while in respect of other provisions thereof, it may be so rejected after giving an opportunity to the appellant to comply with the same. Under rule 80(1), the provisions of rules 76 and 77 will apply mutatis mutandis to every application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d law.............................A writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy, the High Court would be slow to entertain a petition challenging an order of the taxing authority which is ex facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental right of the petitioner. The present case was one in which the jurisdiction of the High Court could not be invoked." On a parity of reasoning, the above observations apply to the assessments made under the sales tax law we have under consideration. The Bengal Finance (Sales Tax) Act, 1941, provides a complete and selfcontained machinery for appropriate relief against a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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