JUDGMENT C.A. Vaidialingam, J. 1. Mr. T.L. Viswanatha Iyer, learned counsel for the petitioner. challenges the order of assessment made by the Sales Tax Officer, Special Circle, Kozhikode, for the assessment year 1958-59. 2. The attack that is made as against this order of assessment is that the assessing authority has arbitrarily fixed the turnover of the petitioner on the basis of certain entries stated to have been found or discovered in what are admittedly, even according to the department, the secret account books maintained by P. Pachukutty & Co., Kozhikode, and that the turnover has also been very arbitrarily fixed at a high and fanciful figure. That is, in short, the attack that is made is that the assessment made by the assessing authority for the year in question is absolutely unrelated to facts. 3. No doubt, the assessing authority issued a pre assessment notice, Ext. A1. In the pre assessment notice dated 2-3-1961 it has been stated that the details of the entries found in the petitioner's name in the secret accounts relating to Sri P. Pachukutty & Co., Big Bazar, Kozhikode and detected by the Intelligence Officer, Kozhikode, from the shop of Shri P. Pachukutty & Sons, Karaparamba, on 21-6-1958, were as per the statement contained therein. Ext. Al gives the items of purchase on five different days of sugar and rice. It is the view of the assessing authority that these transactions are not found in the account books produced by the petitioner and there are certainly other accounting matters mentioned by the assessing authority and ultimately the Sales tax Officer winds up Ext. A1 by saying that it is proposed to take the various points mentioned in the notice for determining the turnover to the best of judgment. 4. The assessee sent a reply to this pre assessment notice and that is Ext. A2. He very strongly controverted the assumption of the officer that any entries found in the secret account books of Sri Pachukutty & Co., or for the matter of that of any other person can be invoked by the assessing authority for the purpose of making an assessment as against the petitioner. A2. He very strongly controverted the assumption of the officer that any entries found in the secret account books of Sri Pachukutty & Co., or for the matter of that of any other person can be invoked by the assessing authority for the purpose of making an assessment as against the petitioner. On the other hand, he strongly controverted that he had anything to do with Sri Pachukutty & Co., or Sri Pachukutty & Sons, and, therefore, he is not in a position to say whether the entries contained in the books stated to have been discovered from his shop are true or not. 5. On the other hand, the petitioner mentioned that he has been keeping proper and regular accounts in the usual course of business and those accounts correctly represent the transactions effected by them. Then he goes into several other details regarding the nature of the transaction and as to how exactly the entries are supported by the books of account. He also says that he has no information about the secret account books of Pachukutty & Co., stated to have been discovered by the Intelligence Officer of the Sales Tax Department. Ultimately, so far as the ups and downs of the business are concerned, the assessee also states that in view of the nature of the business that he is carrying on, there will be bills periodically during particular months. Ultimately, the petitioner winds up by saying that the assessing authority has no jurisdiction whatever for making an assessment on a best judgment basis as he proposes to do. 6. Notwithstanding the frantic attempts made by the assessee it is seen that they did not have any effect on the department as is clear from the order, Ext. A. 3, passed by the Sales Tax Officer, Special Circle. He again reiterates the stand taken by him in the pre assessment notice and proceeds on the basis that even what according to him is the correct account book of a particular dealer, Sri Pachukutty & Co., must be assumed to be correct and true and otherwise all books of account produced by persons like the petitioner will have to be checked and verified with the accounts kept by Pachukutty & Co. This type of approach is absolutely fallacious and will have to be put a stop to. This type of approach is absolutely fallacious and will have to be put a stop to. The authorities concerned have got a duty to find out from the books of account that are produced, no doubt after a proper check with the local information that they may have and after hearing explanations from persons like the petitioner, and adjudicate upon the truth or otherwise of the entries made in the books of account. On the other hand, even according to the Department, the book of account that has been seized by their Intelligence Officer from Pachukutty & Co. is a secret account book maintained by him, and surely if an account is not kept by any other dealer in the usual course of business, but is a secret account, that has no weight whatsoever. It may be if the authorities are proceeding to make an assessment on Pachukutty & Sons and if they have been able to obtain secret accounts maintained by them, probably it may be legitimate for the authorities to act on such account. But they have absolutely no jurisdiction to invoke into their aid the entries that may have been found in the secret account books of third persons and particularly to foist a liability merely on that basis on persons like the petitioner. Unfortunately, that is what has been done in this case, i.e., to test the correctness or truth of the petitioner's account having regard to the entries found in the secret accounts of Pachukutty & Sons. The Department proceeds on the basis that the entries in the secret accounts of Pachukutty & Co., or Pachukutty & Sons are true and on that basis they try to find out the truth or otherwise of the accounts of persons like the petitioner. On that very ground itself the order under attack can be set aside. In fact, there are other reasons also on the basis of which this order can be set aside. Even assuming that the Department is entitled to rely upon any secret account books maintained by other traders, there is a duty and an obligation on the part of the assessing authority, if they are using information founded on these books of account, to produce those parties for cross examination by persons against whom that information is sought to be used. In this case, no such attempt was ever made by the assessing authority, notwithstanding the strenuous attempt made by the assessee in the reply he sent to the pre assessment notice. The approach made and the manner in which the assessment has been finalised by the assessing authority cannot but be characterised as absolutely fallacious and arbitrary. 7. Even regarding the suppression, the assessing authority has proceeded on the basis that the secret account book of Pachukutty & Co., shows that the petitioner must have suppressed Rs. 3652.26 nP. I will assume for the present that the Department Was in order in relying upon the entries found in the secret account book of Pachukutty & Co. So far as that is concerned, of the five entries, the earliest is of 3-4-1958 and the latest of 9-6-1958. In the first place even assuming that these relate really to the petitioner, it has to be borne in mind that these entries relate to rice and sugar which, even according to the officer, are not taxable during the material period. Even regarding these items, the authority is ultimately prepared to accept the explanation of the petitioner regarding the transactions of 3-4-1958, 25-4-1958 and 7-5-1958. He is prepared to Come to the conclusion that there is suppression in respect of the transaction of 5-4-1958 and 9-6-1958. This takes in a period of 2 months. I am discussing this aspect on the basis that the authority is referring to the secret book of account of Pachukutty & Co. These two dates will take in a period of roughly two months and even assuming there is suppression it can be only of Rs. 3652.26 nP. for two months, In fact there cannot be any suppression because these items relate to articles which were not taxable at that time. 8. But the assessing authority gets over it by saying that these items relate to rice and sugar which are inter State transactions, but the dealers would certainly have not confined suppression to exempted goods only, and fixes the taxable suppressed turnover at Rs. 15,000/- per month or of Rs. 1,80,000/- per year. How exactly the assessing authority arrived at Rs. 15,000/- per month is a bit difficult to comprehend, because even on his own reasoning Rs. 3652.26 nP. being the value of the suppressed transactions takes in two months. 15,000/- per month or of Rs. 1,80,000/- per year. How exactly the assessing authority arrived at Rs. 15,000/- per month is a bit difficult to comprehend, because even on his own reasoning Rs. 3652.26 nP. being the value of the suppressed transactions takes in two months. Therefore, the fixing of the amount of suppressed transaction at Rs. 15,000/- per month and again multiplying it by 12 and fixing the total suppression at Rs. 1,80,000/- is absolutely arbitrary and unjust and totally unwarranted in the circumstances of this case, especially when the officer has not cared to apply his mind to the specific plea of the petitioner that the transactions are fully supported by the vouchers and their account books. On the other hand, I do not find any discussion by the assessing authority regarding the nature of the accounts produced, by the petitioner, the nature of the evidence adduced by them, and the nature of the other materials produced by them. On the other hand, there is no doubt, a general statement in the column, at the beginning of the assessment order, relating to "Documents produced in support of the return" namely, "Day book, Ledger, Vouchers and Bills". No reason whatsoever is given by the assessing authority in the order under attack as to why he is not in a position to place any reliance on these books of account. On the other hand, he strives to get support for the conclusion he has arrived at from the secret account books of Pachukutty & Sons or Pachukutty & Co. I have already held that the assessing authority is not justified in adopting that account book for purposes of making an assessment on persons like the petitioner, more especially when he had absolutely no opportunity of knowing either the nature of the entries in the secret accounts of the said persons or when the petitioner had absolutely no opportunity to cross examine those parties in regard to the entries that may have been found on those secret account books. For all these reasons the order under attack is set aside. The assessing authority will take up the question of making a fresh order of assessment for the year in question having due regard to the observations contained in the order. 9. For all these reasons the order under attack is set aside. The assessing authority will take up the question of making a fresh order of assessment for the year in question having due regard to the observations contained in the order. 9. In the first instance, the assessee will be given a further opportunity to adduce evidence, either oral or documentary, to sustain the return itself and the assessing authority will give due consideration to the materials that may be produced by the assessee and give proper reasons if he is not acting upon these materials. The secret accounts of Pachukutty & Co. will have no place whatsoever unless it is established by the Department that the entries directly connect the petitioner with the said transaction. Even under those circumstances, the assessing authority must produce not only the account books but also the owners of those secret accounts for proper cross examination at the hands of the petitioner in the fresh assessment proceedings. Ultimately if the assessing authority still decides to make an assessment on a best judgment basis, there is a duty on the part of the assessing authority to make known to the assessee clearly and fully the basis which he proposes to adopt for such a purpose and only after inviting objections and explanations from the assessee, which will have to be duly and properly considered, an order of assessment will have to be made, according to law. 10. Subject to these observations and directions, the writ petition is allowed and the order under attack is set aside. There will be no order as to costs.