Amiya Kumar Mookerji, J.
1. This rule is directed against an order of best judgment assessment dated 23rd February, 1975, made by the Commercial Tax Officer, Lyons Range Charge, with respect to the petitioners' business known as Messrs. Eastern Trading Company.
2. The petitioners and one Sm. Kankanwari Baid were the partners of M/s. Eastern Trading Co., a partnership-firm registered under the Indian Partnership Act and the said firm carried on business of selling various articles of luxury goods and also used to give the said articles on hire under hire-purchase agreement. The other partner, Sm. Kankanwari Baid died on 9th May, 1978. The petitioners are registered as dealers both under the Bengal Finance (Sales Tax) Act, 1941, and the Central Sales Tax Act, 1956. For the four quarters ending on 31st December, 1973, the petitioners could not submit returns for the 1st quarter ended on 31st March, 1973, within due time, i. e., 30th April, 1973. Thereafter on 8th August, 1973, the petitioners submitted the return for the second quarter ended on 30th June, 1973, showing a gross turnover of Rs. 8,55,511.63 and claiming deduction on account of delivery, discount, etc., under the relevant provisions of the Bengal (Finance) Sales Tax Act, 1941. Respondent No. 1, before the ending of the fourth quarter on 31st December, 1973, issued a notice in form VI on 8th November, 1973, fixing the date of hearing of the assessment. In January, 1974, the petitioners appeared before respondent No. 1 and asked for adjournment as they could not submit the return for the third quarter ending on 30th September, 1973, and could not make the accounts ready with detailed statement of cash sales and hire-purchase sales on completed basis. Moreover on account of a fire break-out causing serious damages to the books of account, the petitioners could not produce the books of account on 9th February, 1974. The petitioners asked for further time but their prayer was disallowed. Thereafter for the quarter ending September, 1973, respondent No. 1 estimated the gross turnover at Rs. 34,00,000. Respondent No. 1 thereafter filed a certificate being certificate No. 279-ST (LR) 74-75 in the office of the Certificate Officer, 24-Parganas, for the non-payment of taxes and penalty for 4 quarters ending on 30th September, 1973. In execution of the distress warrant against the firm, Messrs. Eastern Trading Company, the movable properties of the petitioners as well as the bank accounts of the petitioners, were attached. The petitioners being aggrieved moved this court in an application under Article 226 of the Constitution and obtained the present rule.
3. Dr. Pal, appearing on behalf of the petitioners, contended that' the gross turnover was estimated at Rs. 34,00,000 on mere surmise, suspicion and conjecture. The assessing authority did not conform to the requirement of law and there was no material and/or basis in estimating such gross turnover. It is further contended that no opportunity was given to the petitioners and there has been violation of the principles of natural justice.
4. Mr. Sirkar, appearing on behalf of the respondents, raised two preliminary objections. In the first place, he contended that the other partner, namely, Sm. Kankanwari Baid had died on 9th May, 1973, and her heirs had not been made party in the present rule and the Receiver, who was appointed in a suit on the Original Side of this Court, has not been made a party in other similar rules in which best judgment assessment of the subsequent years were challenged by the petitioners.
5. Under the Bengal Finance (Sales Tax) Act, 1941, the firm is not a dealer. Only the persons namely the individual persons of the firm are registered dealers. Section 16 provides that if any such dealer dies, his or her legal representative shall inform the authority. If such information had not been given, then under Section 22(1 )(i) whoever neglects to furnish any information required by Section 16 shall be punishable with simple imprisonment which may extend to six months or with fine or with both and when the offence is a continuing one, with a daily fine not exceeding fifty rupees during the period of. the continuance of the offence other petitioners in this rule are not the heirs and legal representatives of the said deceased of Sm. Baid. That being so, the death of the other registered dealer, in my view, cannot invalidate the present proceeding under Article 226 of the Constitution. As the registration certificate was issued in the joint names of the three persons, even one person amongst the three, can challenge the legality or validity of an order of assessment. 'Therefore, in my view, the first preliminary objection is of no substance and must fail.
6. It appears that the Receiver has been made a party in C. R. No. 7663 (W) of 1975, i. e., in the present rule. But the Receiver did not choose to appear. That suit between the Chartered Bank and the Eastern Trading Company has got no connection with the ex parte assessment made by the sales tax authorities. So the second preliminary point of Mr. Sirkar also fails.
7. In Raghubar Mandal Harihar Mandal v. State of Bihar (1958) S.C.A. 852, the Supreme Court observed:
No doubt it is true that when the returns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess; but the estimate must be related to some evidence or material and it must be something more than mere suspicion. To use the words of Lord Russel of Killowen again, 'he must make what he honestly believes to be a fair estimate of the proper figure of assessment' and for this purpose he must take into consideration such materials as the assessing officer has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate. In the case under our consideration, the assessing officer did not do so, and that is where the grievance of the assessee arises.
8. It is now well-settled that the Commercial Tax Officer in making ex parte best judgment assessment must make a fair estimate of the proper figures of assessment and for this purpose he should take into consideration the previous returns of the assessee and all other relevant materials which he thinks would assist him in arriving at a fair and proper estimate. Though there must be necessarily some guesswork in the matter, it must be honest guess-work. This court in Jhagru Shaw v. Commissioner of Commercial Taxes 70 C.W.N. 79 took the same view. In the instant case, it appears that the Commercial Tax Officer did not state any reason whatsoever in support of his estimate of gross turnover of Rs. 34,00,000. In view of the law as laid down by the Supreme Court in Raghubar Mandal Harihar Mandal's case, the impugned order of the Commercial Tax Officer in the present case certainly fails to conform to the minimum requirement of best judgment assessment. Accordingly, I quash the best judgment assessment made by respondent No. 1 and remit the case back to the Commercial Tax Officer to make another assessment in accordance with law.
9. Hence, this rule is made absolute without any order as to costs. Let a writ of certiorari be issued quashing the impugned order of assessment. Let a writ of mandamus be also issued setting aside the certificate proceeding started against the petitioner. I however make it clear that if any attachment of the petitioner's property has been made in pursuance of any other proceeding, such attachment shall continue and this order shall not have any effect upon such attachment.
10. This order shall govern the other rules being C. R. Nos. 7660-62(W) of 1975.
11. Let the operation of the order remain stayed for a period of four weeks from today.
12. It is stated by Mr. Sircar appearing on behalf of the respondents that no affidavit-in-opposition has been filed in C. R. No. 7660(W) of 1975 and as such the respondents do not admit any of the allegations made in the petitions of the said rules.