The Sales Tax Officer must make an estimate of the suppressed turnover based on evidence and material, and not on mere guesswork.

P. V. B. RAO, J.

( 1 ) THE petitioners Messrs. Jami Narasaya Prusty and Brothers through the managing Partner Jami Narasaya Prusty filed this application for issue of a writ in the nature of mandamus on the opposite party not to collect the tax assessed on the turn-over of Rs. 45000/- during the three quarters as sales tax.

( 2 ) THE petitioners are a partnership firm consisting of Jami Narasaya Prusty, Jami sundarbalu Prusty and Jami Srivangan Prusty and are dealers registered as such under the Orissa Sales Tax Act. The petitioners submitted a return of their sales for the quarters ending 30-6-55, 30-9-55 and 31-12-55 for a gross turn-over of rs. 36,332-6-3, Rs. 41,807 0-6 and Rs. 33,883-12-6 respectively The petitioner are dealers in grocery, stationery, toilets, books, Khadi cloths, oils, oil-seeds, iron goods, agricultural implements etc. and maintained their accounts on the gross sales that took place in their shop. The Sales Tax Officer was not satisfied with the gross return made by the petitioners and after scrutinising the evidence was satisfied with regard to all the sale transactions returned by the petitioners except with regard to time-piece watches. The Sales Tax Officer felt that a correct return was not made with regard to this, as 13 watches were purchased and there were cash memos only for seven watches of Rs. 23/- each and one was held in stock. So the officer called upon the petitioners to explain as to how the sale of the other five watches was recorded. The petitioner submitted their daily sole accounts and stated that no cash memo was granted for the same but the sale amount was included in the grosssum of the sale price of the daily retail sale. The Sales tax officer was not satisfied with this explanation. There was evidence that these five time-piece watches cost at Rs. 125/ -. But the sales Tax Officer estimated the suppressed turn-over at Rs. 15,000/- each in all the three cases and added the said sum to each of the returns submitted by the petitioners for the three quarters and taxed them on the amounts after addition of rs. 15,000/ -.

( 3 ) THE petitioners contend that this assessment is arbitrary and contrary to the provisions of the Sales Tax Act. According to the petitioners, the Sales Tax Officer ought to have added only a sum of Rs. 125/- to the gross turn-over made by the petitioners for that particular quarter during which the sale amount of these timepiece watches was not shown. The petitioners further contend that it is patent from the three orders that the assessment and the estimate were purely arbitrary inasmuch as for the same reason of the suppression of the sale amount of these five time-piece watches he added Rs. 15,000/- not only to the return made for the period during which these time-piece watches were sold, but to all the three assessments of the three periods. They submit that the assessments are illegal and without jurisdiction and that the illegality is apparent on the face of the orders themselves. Consequently they want that the assessments should be quashed and the opposite party directed not to collect tax from them.

( 4 ) MR. G. K. Misra, the learned counsel for the Department takes a preliminary objection that the application is not maintainable inasmuch as the assessee petitioners" did not go up in appeal against the assessments made by the Sales tax Officer and no writ in the nature of either mandamus or certiorari can be issued as there is another remedy in law provided for the petitioners. In my opinion this objection cannot stand. The orders of the Sales Tax Officer are on the face of themselves contrary to law as I will show presently. They are vitiated by an error apparent on the face of the record as no case is made out on the face of the order to estimate the suppressed turn over at Rs. 15,000/ -. It is also patent from the orders that the same ground, namely, the suppression of the sale of five watches is common to all the assessments for the three quart