Judgement

S. K. Das, J.- The appellant Messrs. Raghubar Mandal Harihar Mandal, hereinafter referred to as the assessee, is a firm of bullion dealers, carrying on its business at Laheriasarai in the district of Darbhanga in the State of Bihar. The assessee was assessed to sales tax for seven quarters ending 31-12-1945, 31-3-1946, 30-6-1946, 30-9-1946, 31-12-1946, 31-3-1947 and 30-6-1947, respectively.

For three of the aforesaid quarters, namely those ending on 31-12-1945, 31-3-1947 and 30-6-1947 the assessee failed to file the necessary returns as required by the provisions of the Bihar Sales Tax Act, 1944 (hereinafter referred to as the Act), which was the Act in force during the material period; therefore, the assessee was assessed for those three quarters under a sub-s. (4) of S. 10 of the Act. For the remaining four quarters the assessee did file returns.

The Sales Tax Officer rejected those returns as also the books of account filed by the assessee for all the seven quarters and assessed the assessee under cl.(b) of sub-s.(2) of S. 10 of the Act. The Sales Tax Officer passed separate orders assessing the tax for all the seven quarters simultaneously on 9-10-1947. He assessed the tax on a taxable turnover of Rs. 2,94,000 for each of the five quarters ending 31-12-1945, 31-3-1946, 30-9-1946, 31-12-1946 and 31-3-1947; for the other two quarters ending on 30-6-1946 and 30-6-1947, he assessed the tax on a taxable turnover of Rs. 3,92,000.

The assessee then moved in appeal the Commissioner of Commercial Taxes, Tirhut Division, but the Commissioner dismissed the appeals by his order dated 23-2-1948. The Board of Revenue was then moved in revision but, by its order dated 31-7-1948, the Board refused to interfere. The Board expressed the view that the finding of the Sales Tax Officer and the Commissioner that the books of account maintained by the assessee were not dependable was a finding of fact which could not be interfered with in revision; therefore the assessing officer was bound to assess to the best of his judgment.

The Board was then moved under S. 21 of the Act to refer certain questions of law to the High Court of Patna which the assessee contended arose out of its order. By its order dated 10-12-1948 the Board rejected the applications for making a reference to the High Court on the same ground namely that no question of law was involved and the assessment orders were concluded by a concurrent finding of fact. The assessee then moved the High Court and by its order dated 27-4-1949 passed in miscellaneous judicial cases Nos. 13 to 19 of 1949, the High Court directed the Board of Revenue to state a case on the following question:

"Whether the Sales Tax Officer is entitled under S. 10 (2) (b) of the Act to make an assessment on any figures of gross turnover without giving any basis to justify the adoption of that figure?"

The Board of Revenue then stated a case, and the High Court disposed of the reference by answering the question in the affirmative by its judgment and order dated 8-1-1952. The assessee then moved this Court and obtained special leave to appeal from the said judgment and order of the High Court.

2. The main contention of the assessee is that the High Court has not correctly answered the question of law referred to it. Before we proceed to consider this contention of the assessee, it is necessary to clear the ground by delimiting the precise scope of the question referred to the High Court. It is well settled that the jurisdiction of the High Court in the matter of income tax references is an advisory jurisdiction and under the Income- tax Act 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 as no reasonable body of persons could have arrived at.

It is also well settled that the duty of the High Court is to start with the statement of the case as the