1. In this tax case filed by the assessee, the order of the Sales Tax Appellate Tribunal sustaining the addition of Rs. 20,000 to the assessees' reported turnover for the assessment year 1980-81 is questioned.
2. The assessee in this case are manufacturers of soft drinks and aerated water. On 17th June, 1981 there was a sample survey and test check of the manufacture of aerated waters and soft drinks in their factory. Based on the survey, the authorities found that for one kg. of CO2, Gas, 238.9 bottles of Limca or 322 bottles of Goldspot could be produced. On the basis of the said finding arrived at, it was found that the assessees had shown lesser outturn of Limca or Goldspot in the previous year 1980-81. Therefore, the assessing authority made a best judgment assessment by adding 5 per cent. for probable omissions to the turnover returned by the assessees. In appeal, the Appellate Assistant Commissioner reduced the addition to 2 per cent. which came to Rs. 43,426. Thereafter, the matter was taken on appeal to the Tribunal. Before the Tribunal, it was contended on behalf of the assesses that the sample survey conducted during the year 1981-82 cannot be taken as the basis for making a best judgment assessment for the year 1980-81 and unless there is some other independent material to indicate that the turnover returns by the assessees may not be true and correct, the survey conducted in the subsequent year, cannot be relied on for disbelieving the return filed by the assessees. The Tribunal, however, rejected the said contention and held that in this case the sample survey conducted on 17th June, 1981 indicating that one kg. of CO2 Gas can produce 238.9 bottles of Limca or 322 bottles of Goldspot can be used for testing the correctness of the return filed by the assessees for the year 1980-81 and that the findings arrived at as a result of the sample survey can be used, taking into account the other circumstances. The Tribunal therefore reduced the addition from Rs. 43,426 to Rs. 20,000. Aggrieved the Tribunal sustaining the addition to the extent of Rs. 20,000 to the turnover returned by the assessees, the present revision has been filed.
3. According to the learned counsel for the petitioner that the survey conducted on 17th June, 1981 cannot form the basis for making a best judgment assessment for the year 1980-81 and that in any event, the findings arrived at as a result of the sample survey cannot automatically be taken as the basis for making a best judgment assessment unless there are other independent materials to doubt the correctness of the return filed by the assessees. According to the learned counsel, the outturn of bottles of aerated waters from one kg. of CO2 Gas will vary depending upon the various circumstances such as actual wastage and the promptness with which the operations are carried on. In this case, the Tribunal has in fact found that there was no change in the nature of trade or the manufacturing process in the years 1980-81 and 1981-82 and there is no evidence to show that there was any change in the machinery or the method of manufacture. The Tribunal also found that the assessee were not in a position to place any fact or material regarding the changes in the climatic conditions and also in the set-up of persons in the factory during the two years. According to the Tribunal, unless the assessee establish that there were changed conditions in the year 1980-81 and therefore the results arrived at the sample survey during the year 1981-82 cannot be applied for 1980-81, one can proceed that the outturn for the years 1980-81 and 1981-82 should be the same. In this view, the Tribunal held that the result of the sample survey conducted in the year 1981-82 cannot completed by ignored while making assessment for the year 1980-81.
4. Learned counsel for the assessees contends before us that though there was no change in the machinery or in the method of manufacture of aerated waters, still due to climatic conditions, the outturn may change. But the Tribunal has found that no material had been produced before it by the assessees to show that there was considerable change in the climatic conditions. The learned counsel then contends that the sample survey was made on 17th June, 1981 which was in summer and normally, in the process of making aerated waters, the bottles will not be filled fully with gas for, they have to allow space for the expansion due to heat and therefore, it is the normal feature in the manufacture of aerated waters that during summer the bottles produced will contain less gas than the bottles which are produced in winter. According to the learned counsel, therefore, the sample survey taken during summer cannot be automatically applied to the manufacture of aerated waters in winter. But we find that the usage that is now spoken to by the learned counsel has not been before the Tribunal and there was no investigation on that aspect. Therefore, at this stage, we are not in a position to entertain a new contention which was not placed before the Tribunal and on which the Tribunal had no occasion to investigate and give its finding. The learned counsel then contends relying on the decision reported in Kalyani Oil Mills v. State of Madras  32 STC 542 that the sample survey conducted in one year and the findings based on that sample survey cannot be used for another year. The decision Kalyani Oil Mills  32 STC 542 was a case where a best judgment assessment was on the basis of electricity consumption. But there was no actual test check or comparable data from other similar oil. It was therefore held that adoption of a particular rate of consumption for estimating the oil produced will be somewhat an arbitrary basis and therefore, a best judgment assessment based on such arbitrary figure cannot legally be upheld. However, in this case, there has been actual test check in the assessees' own factory and it is not based on any arbitrary figure. If one kg. of CO2 Gas has been found to produce 238.9 bottles of Limca or 322 bottles of Goldspot on 17th June, 1981, it is for the assessees to show the reason as to why it was not possible to manufacture the same quantity in the year 1980-81. If the assessees had produced any acceptable material to show that one kg. of CO2 Gas was not able to produced the said outturn for any special reason or reason, it would have been a different matter. But in this case, except saying that the same outturn cannot be expected for the previous year no special reason has been shown as to why it was not possible to produce the same outturn. In this view of the matter, we do not see any justification for interfering with the order of the Tribunal. The tax case is accordingly dismissed.