( 1. ) THIS is a reference by the Sales Tax Commissioner, M. P. , under Section 13 (1) of the M. B. Sales Tax Act, 1950 (hereinafter called the Act ). The questions referred to for decision are :

(1) Whether on finding that the accounts produced at the time of first assessment were incorrect and did not include all transactions the assessing authority is (under Section 10 of the Madhya Bharat Sales Tax Act) empowered to make best judgment assessment for the whole turnover estimated for the period of previous assessment or he can only make additional assessment of items proved to have escaped assessment previously. (2) Whether assessment of the assessing authority under Section 8 (4) (a) is according to law in the circumstances of the case. (3) Whether it was incumbent on the assessing authority to have brought to the notice of the opposite party specific items which had escaped assessment and to have offered him an opportunity to rebut the evidence in regard to such specified items.

( 2. ) THE material facts are that the assessee-firm, Messrs Kunte Brothers of Gwalior, is a dealer in scientific instruments, chemicals, etc. During the assessment year 1951-52 its taxable turnover was determined at Rs. 4,071-4-0, and sales tax was levied accordingly. Subsequently, the assessing authority discovered that there was an under-assessment for the year in question. A notice under Section 10 of the Act was therefore issued to the non-applicant and it was asked to produce its account books and other relevant records for further scrutiny. The assessee failed to appear or to produce its account books in response to this notice. Thereupon the Sales Tax Officer made an estimate of the escaped turnover and made an assessment to the best of his judgment. The total taxable turnover of the dealer was found to be Rs. 28,000, inclusive of the taxable turnover of Rs. 4,071-4-0 determined earlier. After giving credit for Rs. 208-14-9 deposited under the first assessment, an additional demand for payment of Rs. 1,541-1-3 was made on the assessee. The assessee unsuccessfully preferred a revision petition before the Commissioner of Sales Tax. The present reference has been made at his instance.

( 3. ) THE answer to the first question depends on Section 10 of the Act, which runs as follows :

If for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to the tax, or if the licence fee, registration fee or exemption fee has escaped levy or has been assessed at too low a rate in any year, the assessing authority at any time within a period of three years next succeeding that to which the tax or the licence fee, registration fee or the exemption fee relates, assess the tax payable on the turnover which has escaped assessment or levy the correct amount of licence fee, registration fee or exemption fee, after issuing a notice to the dealer and after making such inquiry as he considers necessary.

It will be seen that under this provision if the assessing authority finds that any part of the turnover of the dealer has escaped assessment then the authority after issuing a notice to the dealer and making such inquiry as may be found necessary can "assess the tax payable on the turnover which has escaped assessment". The words "turnover which has escaped assessment" clearly show that when an additional assessment is made under Section 10 in respect of any turnover which has escaped tax, the assessing authoritys jurisdiction under this section is confined to such turnover which has escaped tax and does not extend to revising, reopening, or reconsidering the whole assessment. In proceedings under Section 10, the assessee cannot reopen questions already decided in the original assessment, and likewise the assessing authority cannot make a re-assessment inconsistent with the original assessment in respect of the turnover which is not the subject-matter of proceedings under Section 10. The matter is plain enough on the wor