Ramaswami, J.:— This reference is made by the Board of Revenue under Section 25(3) of the Bihar Sales Tax Act.

2. The material facts are that for the quarter ending 30th of September, 1945, the assessee was taxed under Section 10 of the Act on a total taxable turnover of Rs. 5,88,000. The assessee preferred an appeal before the Commissioner of Sales Tax who by his order dated 9th of March, 1948, upheld the assessment made by the Sales Tax Officer. The assessee then moved the Board of Revenue against the order of the Commissioner but his petition was rejected by the Board by its order dated 6th of August, 1948.

3. In pursuance of the order of the High Court, dated 14th of January, 1949, the Board of Revenue has formulated the following questions of law for the determination of the High Court: “(1) Is the method adopted by the Sales Tax Officer legal and proper for the determination of the assessee's turnover for the quarter ending 30th September, 1945?” and “(2) Are there any legal materials to justify the finding that the average sale of the assessee was Rs. 8,000 per day?”

4. As regards the first question it is plain upon the facts stated that the Sales Tax Officer had jurisdiction to proceed under Section 10(3) of the Act in view of his finding that the accounts produced by the assessee were not genuine. Section 13(2)(a) enacts that “if the Commissioner is not satisfied without requiring the presence of a registered dealer who furnished the returns…………………. he shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a place to be specified therein, either to attend in person or to produce or to cause to be produced there any evidence on which such dealer may rely in support of such returns.” Section 13(2)(b) requires that on the day specified in the notice the Commissioner after hearing such evidence as the dealer may produce shall assess the amount of tax due from the dealer. Section 13(3) provides that if the dealer having furnished returns fails to comply with all the terms of a notice issued under subsection (2), the Commissioner shall assess, to the best of his judgment, the amount of tax due from the dealer. The question therefore in the present case is whether in the circumstances admitted or proved the Sales Tax Officer had jurisdiction to make assessment of tax to the best of his judgment. In my opinion the answer to this question is clearly in the affirmative for in the statement of the case the Board has said that the assessee had withheld genuine books of accounts and merely wanted time for writing out a fresh set of incorrect accounts for submission to the courts. On behalf of the assessee Mr. P.R Das pointed out that the Sales Tax Officer had rejected the books of account produced before him for wholly inadequate reasons. But it is not open to us on this reference to go into the question whether the reasons given by the Sales Tax Officer for rejecting the returns were adequate or not. It was argued for the assessee that the Sales Tax Officer did not apply his mind to the question but mechanically followed the assessment made by his predecessor Parmeshwar Dayal. It was contended that the assessment was therefore not legal. In my opinion there is no substance in the argument. It is true that the Sales Tax Officer referred to the fact that Parmeshwar Dayal had placed no reliance on the account books while making assessment for the previous quarters. But in addition to this circumstance the order of the Sales Tax Officer shows that he has taken other matters into consideration. In the first place he referred to the fact that in a petition dated 24th October, 1945, more than three weeks after the expiry of the quarter in question the assessee had asked for three months' time for writing out pucca books of accounts. It was not of course incumbent upon the assessee to write out pucca books of account from day to day but the unusual delay made by him in preparing these pucca books is certainly a circumstance which the Sales Tax Officer was entitled to take into consideration in holding that the books of accounts produced before him in 1947 were not genuine. It is material to note that the finding of the Sales Tax Officer has been affirmed by the Commissioner and the Board of Revenue. It follows upon this finding that the Sales Tax Officer had jurisdiction under Section 10(3) of the Act to make assessment for the period in question to the best of his judgment.

5. On behalf of the assessee reference was made to Raghunath Mahadeo v. Commissioner of Income-tax, Bihar & Orissa 1925 A.I.R 1925 Pat. 694., Dunichand Dhani Ram v. Commissioner of Income-tax 1926 I.L.R 7 Lah. 201., and Nirmal Kumar Singh Nowlaksha v. Secretary of State for India in Council 1925 A.I.R 1925 Cal. 890.. But in my opinion none of these authorities is of much assistance to the assessee. In all the three cases it was held by the High Court that Section 23(4) of the Income-tax Act was not applicable. But the material facts in each case ought to be distinguished from those of the present case. In the Patna case the assessee produced certain books of accounts to show what his actual profits were. The Income-tax Officer said that the accounts had not been balanced and therefore he could not get reliable information from them and accordingly proceeded to make assessment under Section 23(4) of the Income-tax Act. It was not found in that case that the books of accounts produced were not genuine but the Income-tax Officer did not accept the evidence produced as conclusive of the matter. In the Lahore case the assessee made a return of his income and then, in obedience to an order under Section 22(4) of the Income-tax Act, produced all his account books but the Income-tax Officer refused to accept the books and proceeded to make assessment under Section 23(4) merely because the account books were complicated and they were not maintained in a proper manner. In the Calcutta case a return was made by the assessee under Section 22(3) of the Income-tax Act. The Income-tax Officer accepted the return made by the assessee with respect to the profits of six businesses but he refused to accept the deductions which the assessee sought to make in respect of the expenses of his business. Therefore the Income-tax. Officer made a percentage deduction from the profits to represent the legitimate deductions for expenditure incurred in an arbitrary manner. Upon these facts it was held that Section 23(4) did not apply. It is manifest that the material facts of the present case are widely different. Having rejected all the account books furnished by the assessee as not genuine it was certainly open to the Sales Tax Officer, indeed it was his duty, to make assessment for the period in question under Section 10(3) of the Sales Tax Act to the best of his judgment.

6. The second question is whether there are any legal materials to justify the finding that the average sale of the assessee was Rs. 8,000 per day. In my opinion this question also must be answered in the affirmative. The Sales Tax Officer has said that he had “several occasions to visit the dealer's shop besides passing in front of it almost twice a day”., Taking everything into consideration, the situation of the shop, the rush of the customers and the stock in the shop and also the estimate made by the Assistant Commissioner for the previous quarters, the Sales Tax Officer came to the conclusion that the average sale of the assessee was Rs. 8,000 per day for the period in question. It is not stated on behalf of the assessee that the Sales Tax Officer had acted mala fide. The only argument addressed on his behalf is that there was no adequate evidence on which the assessment could be based. This, in my opinion, is hardly a question of law. Ex hypothesi an assessment under Section 10(3) must be to some extent arbitrary because it is based on inadequate material. It is a mere estimate. But if it is made by the Sales Tax Officer bona fide and “to the best of his judgment” (which only means “as best he can in the circumstances”) the assessee has no cause for complaint. As observed by the Lord President in Macpherson v. Moore the assessee who has “not chosen to state an account so that the amount of profits may be strictly determined cannot complain if a random assessment is made” upon him by the Crown. If an assessee produces fabricated registers or refuses to produce genuine material upon which an assessment can be made, is he for that reason to escape assessment altogether? Certainly not. As observed by Lord Mackenzie in the same case, “with regard to the practical difficulty of finding out the amount of profits upon which the assessment is to be laid, I can only say this, that it is not necessary to arrive at any satisfactory conclusion upon the matter, because it is not a matter with which the Court is concerned. If the Act of Parliament says the amount of profits is to be ascertained, ascertained they must be whether that can be done in a satisfactory method or not”. In the present case it is obvious that upon the facts stated the second question must be answered against the assessee.

7. Lastly Mr. P.R Das stressed the argument that in any case no notice was served upon the assessee under Section 10(2) of the Act and in the absence of service of notice the Sales Tax Officer had no jurisdiction to assess the tax to the best of his judgment. Learned counsel referred to page 16 of the paper book in which there is statement of the Board that “no subsequent notice under Section 10(2) was however issued”. In my opinion it is impossible to examine the validity of the argument because no such question was formulated by the High Court in calling for the reference and no statement of the case has been made by the Board of Revenue thereon. It is of importance to state that the jurisdiction with which the High Court is invested under Section 21 of the Act is of an exceptional nature and is limited by the express terms of the section that the High Court is in seisin of only such question of law as has been duly raised in the statement of the case. I do not therefore propose to examine the question raised by Mr. P.R Das on behalf of the assessee. But it is right to state that in the petition made by the assessee for reference before the Board of Revenue no such question was formulated. In the order of the Board of Revenue at page 16 of the paper book it is mentioned that usual notice had been sent in the prescribed form calling for the return and all relevant documents and such notice was duly issued and served upon the assessee.

8. Upon all these grounds I would answer the questions referred to the High Court in the affirmative. The assessee must pay the cost of this reference. Hearing fee Rs. 250.

Sarjoo Prosad, J.:— I agree.

10. Reference answered accordingly.