Govinda Bhat, J.
1. This is a revision petition by an assessee under section 23(1) of the Mysore Sales Tax Act, 1957, hereinafter called the Act.
2. The assessee carries on the business of a restaurant called 'Vinayaka Restaurant' at Haveri, and therefore, he is a dealer under the Act. For the assessment year 1966-67, he declared a taxable turnover of Rs. 15,028. In support of that return, he produced books of account before the assessing authority. After scrutiny, the assessing authority rejected the accounts and made an order of assessment on best of judgment basis and in determining the taxable turnover of the assessee, he applied the usual formula of computing the turnover by multiplying the working expenses of a hotel by five. In other words, the assessing authority computed the total working expenses of the assessee for the relevant year as Rs. 5,377, which he multiplied by 5 and thus arrived at Rs. 26,855 as the taxable turnover. On the said basis an assessment was made on 29th February, 1968.
3. The assessment thus concluded was reopened by the assessing authority in the exercise of his powers under section 12-A of the Act on the ground that a turnover of Rs. 7,210 had escaped assessment. The said sum of Rs. 7,210 was stated to be the amount received by the assessee for supply of refreshments to the N.C.C. Cadets attached to Gudleppa Hallikeri College, Haveri. The assessee contended, inter alia, that the said supply of refreshments was made by his brother and not by him. That contention was negatived by the assessing authority. After rejecting the contention of the assessee, he added the sum of Rs. 7,210 to the taxable turnover of Rs. 26,855 originally determined and levied tax on the turnover alleged to have escaped assessment. He further levied a penalty of Rs. 216.
4. The assessee's appeal to the Assistant Commissioner of Commercial Taxes, Belgaum Division-I, Dharwar, was dismissed on 30th January, 1970, and that order was affirmed by the Mysore Sales Tax Appellate Tribunal, Bangalore, in S.T.A. No. 299/70.
5. Before the Tribunal, the assessee did not press his contention that the transaction relating to the supply of refreshments to the N.C.C. Cadets was not on his account. The only ground urged was that since the original assessment was made on the best of judgment basis under section 12(3) of the Act, the turnover found to have escaped assessment during the relevant assessment year cannot be added to the turnover originally determined. That legal contention of the assessee was rejected by the Tribunal on a reasoning which cannot be supported. The Tribunal's view was that the disputed turnover of Rs. 7,210 was not included in the turnover declared by the assessee and as it has been found by the taxing authorities that the said transaction was done by the assessee, the same is liable to be reassessed as escaped turnover.
6. Sri B. V. Katageri, the learned counsel for the assessee, contended that once an assessment was made under section 12(3) on the best of judgment basis, such an assessment cannot be reopened and the escaped turnover cannot be brought to assessment under section 12-A of the Act. This proposition, in our opinion, is too broad and cannot be accepted.
7. In the instant case, the taxable turnover of the assessee was determined in the original order of assessment by applying the usual formula of multiplying the working expenses by 5. It is not the contention of the department that fresh material had been found to show that the working expenses as computed in the original order of assessment was too low. It has to be noted that the assessee returned a turnover of Rs. 15,028.00. The assessing authority in the best of judgment assessment added nearly Rs. 11,000. If the assessee had supplied refreshments to the N.C.C. Cadets of the value of Rs. 7,210, the said turnover would come within the turnover determined on the basis of working expenses and, therefore, it cannot be said that the said turnover has escaped assessment. This view of ours is supported by the decision in Footer Mal Megh Raj v. Commissioner of Sales Tax, Uttar Pradesh ( 28 S.T.C. 361).
8. For the reasons stated above, we allow this revision petition, set aside the order of reassessment made under section 12-A as affirmed by the appellate authorities and also the levy of penalty. The petitioner is entitled to his costs. Advocate's fee Rs. 100.
9. Petition allowed.