SABYASACHI MUKHARJI, J.

( 1 ) IN this reference under the Central Sales Tax Act, 1956, read with Section 21 (3) of the Bengal Finance (Sales Tax) Act, 1941, we are concerned with two questions which have been referred to this court as directed by this court. The questions are as follows : (i) Whether, on the facts and in the circumstances of the case and on a proper construction of Rule 4 (4) of the Central Sales Tax (West Bengal) Rules, 1958, the learned Member, Board of Revenue, was right in holding that neither the Assistant Commissioner nor the Additional Commissioner was empowered to accept and consider the declaration form filed by the assessee along with the petition of appeal. (ii) If the answer to question (i) be in the negative then whether the learned Member, Board of Revenue, was right in holding that the merits of the case were not affected although the said declaration forms had not been considered by either the Assistant Commissioner or the Additional Commissioner.

( 2 ) WE are concerned in this case with the assessment under the Central Sales Tax Act for the dealer's assessment in respect of four quarters ending with Kartick Badi 15, 2016 S. Y. The Commercial Tax Officer, Esplanade Charges, Commercial Tax Directorate, West Bengal, issued a notice on 19th January, 1960, in form No. 3 fixing 3rd May, 1960, as the date of hearing and asking the dealer to produce books of account for the said period of four quarters for the purpose of assessment as the dealer had failed to furnish quarterly returns for the said period. On 3rd May, 1960, the case was adjourned to 10th August, 1960. On 10th August, 1960, the dealer's lawyer appeared and prayed for time as the books of account were not fully adjusted. The case was, therefore, adjourned to 18th August, 1960. The dealer's lawyer appeared on the date and again prayed for time on the same ground. The Commercial Tax Officer, Esplanade Charge, did not grant the dealer further time and proceeded to assess the dealer ex park to the best of his judgment. In his assessment under the State Act for the same period the dealer was allowed exemption under Section 5 (2) (a) (v) of the State Act for Rs. 7,20,000 being inter-State sales. Hence the Commercial Tax Officer by his order dated 23rd August, 1960, assessed the taxable turnover at Rs. 7,20,000 and charged the same to tax at 7 per cent. A penalty of Rs. 500 was also imposed for non-submission of returns. The dealer then filed an appeal before the Assistant Commissioner, Commercial Taxes, Chowringhee Circle, against the assessment order. The Assistant Commissioner by his order dated 25th May, 1960, reduced the taxable turnover to Rs. 5,00,000 keeping in view the fact that the dealer's gross turnover and taxable turnover under the State Act was reduced in appeal and charged 50 per cent of the said amount at 7 per cent and the rest 50 per cent at 1 per cent. The order for penalty assessment was not interfered with. Thereafter, the dealer filed petition for revision before the Commissioner, Commercial Taxes, West Bengal. The Additional Commissioner, Commercial Taxes, West Bengal, who dealt with the revision petition for reasons mentioned in his order dated 22nd January, 1964, rejected the said petition and confirmed the order appealed from. The Additional Commissioner of Commercial Taxes, inter alia, decided that the estimate of the taxable turnover by the Assistant Commissioner was reasonable and the contention of the dealer that the sales were to registered dealers was not substantiated. The dealer then filed a revision petition before the Board of Revenue. At the time of hearing before the Additional Member, Board of Revenue, who dealt with the case, it was urged, among other points, that both before the Assistant Commissioner and the Additional Commissioner mention had been made about the declaration forms which had been enclosed with the petition of appeal. Nevertheless, neither the Assistant Commissioner nor the Additional

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