Mehar Singh, J.
1. The appliqant-firm, Bhagwan Das Sud and Sons of Hoshiarpur, was, on the basis of best Judgment assessment, assessed to Rs. 4,388-15-0 sales tax on the total turnover of Rs. 3,00,000 after allowance of deductions have been made for one amount of Rs. 11,434-4-9 in respect of the goods sold to registered dealers and for another amount of Rs. 1,45,509-8-0 on account of the goods despatched to places outside the State. This was by the Assessing Authority's order of 7th February, 1955.
2. The applicant in its return for the year 1951-52 showed total purchases of Rs. 4,58,463-5-9 and sales of Rs. 1,59,553-13-9. It claims deductions of the two amounts for which deductions have actually been allowed and after allowance of such deductions the taxable turnover left was Rs. 2,610-1-0, on which the applicant paid sales tax in the amount of Rs. 81-9-0. The Assessing Authority found (1) that the petitioner-firm had not prepared an account of profits and losses, it had kept no account of opening and closing stock nor capital account and it has maintained no balance-sheet for the relevant year, (2) that the purchases were of the value of a little over four and half lacs and the sales shown were of the value of the little over one and a half lacs, which disparity was abnormal and (3) that the applicant had purchased ten items of drums of considerable value and some timber, including fifteen sleepers of which no entries were made by it in its books and thus of which it failed to show sales. On these considerations the Assessing Authority came to the conclusion that the account books of the applicant-firm are unreliable and not dependable. It then proceeded to best Judgment assessment and did so on consideration of the amount of purchases and sales and the scrutiny of the accounts, as were available, of the applicant-firm.
3. The applicant-firm went in appeal to the Deputy Excise and Taxation Commissioner against the order of the Assessing Authority and the Appellate Authority dismissed the appeal, agreeing with the Assessing Authority, on 11th December, 1956. The applicant-firm then filed a revision application against the appellate order of the Appellate Authority to the Excise and Taxation Commissioner. He also considered the grounds given by the authorities below and came to the conclusion that the account books of the applicant-firm could not be relied upon and that the Assessing Authority had proceeded to best Judgment assessment on such material as it could find in the case. The order of the Excise and Taxation Commissioner is of 18th November, 1956. Against this order the applicant-firm went in second revision to the Financial Commissioner. The grounds of revision to the Financial Commissioner are not part of the record of this case. All the same we permitted the learned counsel for the applicant to read the grounds to us. In it the case has been stated at full length on behalf of the applicant-firm. The learned Financial Commissioner, however, on 3rd May, 1957, refused to interfere with the orders of the authorities below coming to the conclusion that no question of law was involved in the case and that there was only a question of fact, whether or not the accounts of the applicant-firm are reliable. He dismissed the revision application. The applicant-firm then applied to the Financial Commissioner under Section 22(1) of the East Punjab General Sales Tax Act (East Punjab Act No. 46 of 1948), for drawing up a statement of the case and for reference of the following questions of law to the High Court-
(1) Is an Assessing Authority competent under law to hold accounts for a particular year to be unreliable if the same are kept on the said basis on which accounts for previous and succeeding years have bean kept and which accounts for previous and succeeding years have been accepted to be correct by the Assessing Authority ?
(2) If the answer to No. 1 above be in the affirmative, is the Assessing Authority competent under law to take such a decision without following the procedure laid down in Section I3(a) of the Punjab General Sales Tax Act ?
(3) Is the Assessing Authority competent under law to draw an inference adverse to the orders assessing merely on the score of purchases for a particular year having been higher than sales during that year inspite of the fact that the disparity between purchases and sales for a period of three years including two years succeeding the year concerned, is not very large and in fact the aggregate of sales over this period of three years, is larger than the aggregate of purchases during this year ?
(4) Does the fact that the learned Deputy Excise and Taxation Commissioner has mis-stated the facts in an important respect inasmuch as he has failed to state in his Judgment that the entry of fifteen sleepers was duly recorded in their accounts by the petitioner-firm as the same was seen, accepted and signed by the learned officer himself, became a question of law ?
4. The learned Financial Commissioner by his order of 22nd January, 1958, dismissed this application on the ground that interpretation of the accounts of the applicant-firm does not bring in any question of law but brings in merely considerations of questions of fact upon which the authorities below have concurrently and consistently found against the applicant-firm.
5. It is thereafter that the applicant-firm has made the present application under Sub-sections (2) and (3) of Section 22 of the East Punjab Act No. 46 of 1948 praying that this Court may require the Financial Commissioner to state the case and refer to it the questions of law that have already been reproduced above. In the application in addition two more questions, as below, have been suggested, upon which it is said, reference should be invited.
(a) Whether the best Judgment assessment by the Assessing Authority made capriciously and without any regard to the available material and without giving reasons for the assessment made is not a question of law.
(b) Whether the evidence on the record justified what the Financial Commissioner has held.
6. The learned counsel for the applicant-firm contends on the first question that similar accounts of the applicant-firm, for the year preceding and succeeding the year 1951-52, have been found reliable and it is a question of law whether the accounts maintained during that year can be rejected as unreliable in the circumstances. This may be in particular circumstances a question of law if the rejection of the accounts proceeds upon the consideration of the nature and character of the mode or method of maintaining account books, but in the present case the account books have been found unreliable on consideration, among others, of the same not containing entries in regard to purchases proved to have been made by the applicant-firm of drums and timber. The omission of entries in regard to purchases in a particular year and the effect of such omission cannot possibly raise an important question of law on which ground the Financial Commissioner could have interfered with the orders of the authorities below in exercise of his revisional powers under Sub-section (3) of Section 21 of the East Punjab Act No. 46 of 1948. The learned counsel for the applicant-firm then refers to Section 13(1) of the East Punjab Act No. 46 of 1948 and contends that no notice has been given under that provision to the applicant-firm in regard to the manner of keeping accounts, but it is obvious, that that provision can have no application to the present case as here the Assessing Authority was scrutinising accounts of a past year about the maintenance of which no notice could have been issued under Section 13(1) of the Act at the time of the assessment. This provision has no application to the present case and raises no question of law in this case.
7. It may turn to be a question of law of some importance, if it is the only factor taken into consideration, when purchases in a particular year of a dealer far exceed sales shown by him, whether this consideration by itself can lead to the conclusion that the accounts have not been properly kept; but, as already pointed out, in regard to the first question, this consideration and the one referred to in the first question are only two out of the four considerations which have prevailed with the Assessing Authority in finding the account books of the applicant-firm as unreliable, the other two considerations being purchase of drums and omission of entries with regard to such purchase in the account books and purchase of timber and omission of entries with regard to such purchase in those books.
8. In so far as the fourth question, that has been propounded, is concerned what is alleged is that on the question of the purchase of the timber, in regard to fifteen sleepers, the Deputy Excise and Taxation Commissioner noted an entry about them in the account books of the applicant-firm and initialled the entry, but in spite of that he proceeded on the consideration that there is no entry with regard to the purchase of this number of sleepers. It is said that this mistake has vitiated his order and this aspect has not been considered in the last resort by the Financial Commissioner and therefore a question of law arises for consideration in a reference to this Court. But the Assessing Authority found timber of six railway receipts to have been purchased by the applicant-firm which did not enter in its account books. Surely fifteen sleepers were not received under these railway receipts. Considerable other quantity of timber was purchased by the applicant-firm and the purchases were not shown in its account books so that it may not be necessary for it to show the sales of the same. At one stage it was explained on behalf of the applicant-firm that the remaining timber came from the applicant-firm's branch at Dhilwan and was sent to the applicant-firm's branch at Pathankot and thus there was no occasion for making entries about it in the account books at Jullundur. This is not true for if that was so, the railway receipts in regard to the purchase of timber, which the Assessing Authority considered, could not possibly have related to such timber for in the case of timber sent from Dhilwan to Pathankot the railway receipt could not arrive at the Jullundur railway station. Consequently this slight mistake about the entry of fifteen sleepers, in the circumstances, raises no question of law when it is as a fact found that some timber was purchased by the applicant-firm and purchase of it was not entered in its account books.
9. This disposes of the four questions which the applicant-firm raised before the Financial Commissioner when asking for statement of the case and reference of those questions to this Court. The two new questions raised in the application in this Court concern the question of best Judgment assessment. In the first place, the basis of the best Judgment assessment was not a question that was raised before the Financial Commissioner in revision and obviously no question of law could therefore in that relation arise for his consideration and there could be none in this respect about which he could make reference. The best Judgment assessment is based on some material before the Assessing Authority in the shape of the accounts, as they were, of purchases by the applicant-firm and they denied the Assessing Authority any better material and therefore the present is not a case in which the best Judgment assessment is based on no material at all. So the merit of the best Judgment assessment does not raise a question of law and cannot be canvassed for the first time in an application like this : Doma Sahu Kishun Lal Sao v. State of Bihar  2 S.T.C. 37. The other question raised in this connection is whether the evidence on the record justified the order of the Financial Commissioner. Two patent facts are there and those are the omissions to write in the account books purchases about drums and timber, so that the applicant-firm may not later on show the sales of the same and thus escape payment of the sales tax. This material by itself could be the basis of the conclusion of the authorities below and if in addition they have taken into consideration other factors which may seem to involve questions of law reference on the latter would be meaningless for the case of the applicant-firm must fail on the first consideration upon which the authorities below could base their conclusions, with which conclusions of fact this Court cannot interfere in an application like the present.
10. In consequence, this application fails and is dismissed, but in the circumstances of the case there is no order as to costs.
Inder Dev Dua, J.
11. I agree.