V. K. SINGHAL, J. - In this revision under section 15 of the Rajasthan Sales Tax Act, 1954, the assessing authority has raised the following question for determination by this Court :

"Whether in the facts and in the circumstances of the case, the Tribunal was justified in setting aside the enhanced tax amount and penalty ?".

The assessee is a dealer of packing material including glass bottles. In the assessment order for the years 1978-79 and 1979-80 it was found that the books of accounts, sale and purchase vouchers have not been produced and, therefore, the assessing authority enhanced the turnover and levied the tax under section 10(4) of the Rajasthan Sales Tax Act and have also levied penalty under section 7AA of the Act. In appeal before the Deputy Commissioner (Appeals), the appellate authority has reduced the enhanced turnover from Rs. 14,000 to Rs. 17,000 and Rs. 18,000 to Rs. 9,000 and the appeal was partly allowed. Before the Rajasthan Sales Tax Tribunal, the matter was challenged and the Tribunal came to the conclusion that there is no ground or justification for framing the assessment under best judgment basis without serving summons on the witness, who under the circumstances, would have been the most relevant witness to be cross-examined both on behalf of the assessing officer as well as the assessee. This observation was given by the Sales Tax Tribunal on the basis that the books of accounts were with ex-employee and therefore, could not be produced before the assessing authority. The Tribunal found that the enhancement is liable to be struck off since the turnover in the first year is more than double and than that of the next year is about 20 per cent more. Therefore, there is no justification for enhancement of the turnover. Levy of penalty under section 7AA was set aside on the ground that the tax was deposited voluntarily.

Arguments of Mr. Bafna on behalf of the assessing authority have been heard. Even for making assessment under best judgment basis, though there is some element of guess-work, but it cannot be wild one and must be having some reasonable nexus to the available material and has to depend on the circumstances of each case. The judgment does not depend on arbitrary caprice of a Judge, but on settled and invariable principles of justice. The assessing authority can take into consideration the knowledge, repute in regard to the assessee's circumstances and may also take into consideration the previous returns of the assessee. All these matters could be taken into consideration to come to a fair and proper estimate. The Sales Tax Tribunal has taken the returns of the previous years into consideration and on that basis on account of non-production of books of accounts has quashed the enhancement which is on the basis of the established principles of law and no illegality is found therein.

Regarding the question of levy of tax on old glass bottles, the Sales Tax Tribunal has come to the conclusion that the purchases by the assessee must have directly or indirectly suffered levy of tax and no tax at second time could be levied. The Karnataka High Court in Subramanya Reddy and Co. v. Karnataka Appellate Tribunal [1985] 59 STC 84 has taken the view that the purchases of bottles from hawkers cannot be made liable to tax and the fact that they are second hand bottles, is sufficient to hold that there was earlier sale of bottles, which was liable to tax. This Court has also taken the same view in the case of A.C.T.O. v. Ganganagar Bottles Supply Company (1991) 1 RTJS 213 and in the case of C.T.O. v. Ganganagar Sugar Mills (S.B. Civil Sales Tax Revision No. 22 of 1986 decided on 26th November, 1991), wherein it has been held that the tax cannot be levied at a second point in respect of such old and second hand bottles.

In view of the decision taken by this Court, I am of the opinion that the view taken by the Sales Tax Tribunal was in accordance with law.

The penalty under section 7AA was levie