The Tribunal has the power to set aside an order of the Commissioner of Commercial Taxes and remand the case to him for passing a fresh order if the Commissioner has failed to consider the assessee's arguments or if there is no material on record to justify the Commissioner's decision.

S. P. Sinha and N. P. Singh, JJ.

1. The Commercial Taxes Tribunal, Bihar, Patna, has made statement of the case, on being directed by this Court to do so, under Sec.33 (3) of the Bihar Sales Tax Act, to make the statement of this case in the following terms: whether, on the facts and in the circumstances of this case, a revision lay to the Commercial Taxes Tribunal, from the order dated 14th January, 1969, of the Commissioner of Commercial Taxes? If so, is the order of remand passed by the Tribunal in this case legally justified?

2. The first part of the aforesaid question is directly covered by a Bench decision of this Court in the case of Commissioner of Commercial Taxes, Bihar, Patna V/s. Guru Charan Sao [1974] 34 S. T. C.378, which is based upon a decision of the Supreme Court on the same question in the case of Board of Revenue, Madras V/s. Raj Brothers Agencies [1973] 31 S. T. C.434 (S. C. ).

3. Consequently, the first part of the question has to be answered in the affirmative, that is to say, from the order dated 14th January, 1969, passed by the Commissioner of Commercial Taxes under Sec.31 (5) of the Bihar Sales Tax Act, 1959, hereinafter to be referred to as the Act, a revision lay to the Commercial Taxes Tribunal under Sec.31 (2) of the same Act.

4. Passing now to the second part of the question, a few facts may be stated in that connection.

5. The respondent-assessee moved the Commissioner of Commercial Taxes under Sec.31 (5) of the Act requesting him to revise the assessment order passed for the period 1965-66 dated 23rd January, 1968. The said assessment had been made ex parte because on the date fixed for the dealer to produce the relevant account, the dealer had failed to do so. The date fixed was 23rd January, 1968. This was the first date fixed in the case for framing assessment for the said period and on this very first date the assessment was completed by enhancing the dealers turnover by 25 per cent on his return. Besides, the dealers claim for deduction on account of sales made to the dealers outside Bihar was also disallowed.

6. Although in its original petition under Sec.31 (5) of the Act the dealers simple request was to set aside the ex parte assessment made for the period, but by a further petition he substantiated that prayer by stating further facts relating to the few past assessments made in his case. In that supplementary petition, it was stated by the dealer that for the assessment periods 1962-63 and 1963-64 he was assessed on the gross turnover as returned by him by the assessing officer. For the assessment year 1964-65, when the assessment was taken up by the present assessing officer, he enhanced the gross turnover and also rejected the claim for exemption of sales made outside Bihar. The assessment was appealed against and the same was set aside and remanded for reassessment after examining the dealers books of account. For the period in question, therefore, there was a prayer that the ex parts assessment order should be set aside.

7. The Commissionerof Commercial Taxes, after having duly mentioned the aforesaid facts, rejected the dealers petition on the simple ground that he had failed to appear when he was called upon to do so by the assessing officer. The dealer then moved the Commercial Taxes Tribunal in revision. The Tribunal observed that although the gross turnover could be enhanced, but, as laid by the Supreme Court in the Raghubar Manuals case [1957] 8 S. T. C.770 (S. C.), it must have reasonable nexus with the available materials and the circumstances of the case. The Tribunal found that there was no material available on the record to justify the enhancement of the gross turnover by 25 per cent nor was there any evidence that the dealer had suppressed any sale. The Tribunal, therefore, observed that "to this extent, there is an apparent illegality in the order of assessment, which has not been but which has to be considered by the learned Commissioner". After discussing