JUDGMENT 1. ONE Dulal Chandra Ghose, since deceased, was the sole proprietor of a business known as "messrs. Dulal Chandra Ghose" and in the said business was a dealer in milk, cooked foods (including salted snacks or nonta-khabar), curd, and Indian sweets made of preparation or products of milk, cereals, pulses and sugar. The said Dulal Chandra Ghose was registered as a dealer under the Bengal Finance (Sales Tax) Act (hereinafter referred to as the 'act') and he used to file quarterly returns under the Act in his said business. During his life-time he had filed returns for the four quarters ending with Ashar, Aswin, Pous and Chaitra 1365 B. S. In the four quarterly returns taken together, the gross turnover was shown at Rs. 1,88,312/34 np. Out of that, deductions, under section 5 (2) (a) (i) of the Act, were claimed at Rs. 1,28,464/55 np. and the taxable turnover was shown at Rs. 59,847/79 np. On the amount of the taxable turnover the said Dulal Chandra Ghose paid a sum of Rs. 2857/70 np., as admitted sales tax, as he thought, he was required to do under the Act. The assessment, however, was not completed during his lifetime. 2. DULAL Chandra Ghose died intestate on May 22, 1960, leaving him surviving his sole widow, Nanibala Ghose (Petitioner No. 1), and his only daughter, Sibani Ghose (petitioner No. 2), as his sole heirs and legal representatives. As between the two petitioners there was a deed of partnership executed and the same trade was restarted by them at the same place under the same trade name. A copy of the partnership deed was filed before the Commercial Tax Officer, Howrah Charge, and the petitioners prayed for fresh registration as dealers in the said partnership business. The prayer was allowed and the partnership was registered as a dealer under the old registration number, HW 1652a. The Commercial Tax Officer doubted the correctness of the quarterly returns for the year 1365 B. S., filed by Dulal Chandra Ghosh. He, therefore, issued a notice in form VI, under Section 11 and Section 14 (1) of the Act, calling upon the Partnership to produce books of accounts together with any objection which it might wish to prefer and any evidence which it, might wish to adduce in support thereof. He, therefore, issued a notice in form VI, under Section 11 and Section 14 (1) of the Act, calling upon the Partnership to produce books of accounts together with any objection which it might wish to prefer and any evidence which it, might wish to adduce in support thereof. The petitioners felt that the returns filed by Dulal Chandra Ghosh and the taxable turnover admitted by him were done through misunderstanding and mistake and they further felt that from out of the gross turnover the entire amount was deductible, under section 5 (2) (a) (i) of the Act, being sale of goods declared tax-free under section 6 of the Act, with the result that the taxable turnover would become nil. The petitioners, therefore, caused revised returns to be filed, in which the amount of gross turnover was shown at Rs. 1,88,349-35 np. and the whole of the said amount was claimed as deduction, under section 5 (2) (a) (i) of the Act. The aforesaid returns were filed under the provisions of section 10 (4) of the Act. In an explanatory statement, also filed before the Commercial Tax Officer, the petitioners showed the break up of the gross turnover in the following manner :- (i ) Sale of nonta Khobar Rs. 84. 098/00 np. (ii) Sale of sweets Rs. 65,024/12 np. (iii) Sale of curd Rs. 22,414/73 np. (iv) Sale of milk Rs. 16,812/50 np. Rs. 1,88,349 /35 np. 3. THE reasons why the petitioners contended that the taxable turnover would be nil were :- (1) that salted snacks or nonta khabar were cooked food other than cakes, pastries and sweetmeats and were exempt from taxation under section 6 of the Act, (2) Milk and its preparation curd were also so exempt, (3) Indian sweets prepared with milk or milk products or preparations, cereals, pulses and sugar or with one or more of them did not come under the category of sweet-meats and were also so exempt. 4. THE Commercial Tax Officer did not accept the revised returns filed on behalf of the petitioners and also did not accept the claim for deduction made by the petitioners, excepting for salted snacks or nonta khabar. 4. THE Commercial Tax Officer did not accept the revised returns filed on behalf of the petitioners and also did not accept the claim for deduction made by the petitioners, excepting for salted snacks or nonta khabar. His reasons for so doing are quoted from the assessment order :- (1) "it is, however, seen that the dealer earned a gross-profit of about 10 per cent of sales only during the period under assessment, which is unusually low for a manufacturer of sweetmeats and nonta khabav. In my opinion the gross profit should be in the neighborhood of 20 per cent of sales at least. The dealer fails to explain satisfactorily the reason for this low rate of gross profit except in very general terms such as rise in cost of raw materials. Taking these into consideration I think that there has been a suppression of 10 per cent of sale which comes to Rs. 18,834-0. I, therefore entrance the G. T. of the dealer by Rs. 18,834-0. " (2) "i went through the dictionary meaning of sweetmeats in the Chamber's Dictionary which reads as follows: 'shaped morsel of confectionary usually consisting chiefly of sugar and chocolate'. In the context of the above definition I fired no reason, why it should disagree with 'sandesh' and 'rasogolla' etc, prepared by the dealer. So I do not find any substance in the dealer's contentions. " (3) "but having regard to the fact that the dealer is a seller of nonta khabar also, which is apparent, i allow an exemption of 50 per cent of the total sale of Rs. 1,03,591-67 np., under section 5 (2) (a) (i) of the B. F. (S. T.) Act. 41." The propriety of the order is being disputed before me in this Rule. Mr. Ranadev Chaudhuri, learned Advocate for the petitioners, made a three-fold contention in support of this Rule. He contended, in the first place, that the assessment order was a guess work and not a best judgment assessment. He contended, in the next place, that milk and curd, which latter was milk product or milk preparation, were exempt from taxation under the Act, as much exempt as cooked food like nonta khabar. The Commercial Tax Officer was wrong in deducting the sale price of nonta khabar only from the gross turnover and not the sale price of milk and curd also. The Commercial Tax Officer was wrong in deducting the sale price of nonta khabar only from the gross turnover and not the sale price of milk and curd also. He contended lastly, that Indian sweets like sandesh or rosogolla or the other varieties of sweets sold by the petitioners fell within the category of cooked-food and were not sweetmeats and as such were exempt from taxation 5. THE first two branches of the contention advanced by Mr. Chaudhuri arc certainly contentions of substance. The assessment order of the Commercial Tax Officer from several infirmities. He proceeded to enhance the amount of the gross-turnover by 10 per cent on the theory that a gross-profit of 10 per cent of sales was unusually low for a dealer in sweets and nonta khabar and that the gross-profit should be in the neighbourhood of 20 per cent of the sale. The Commercial Tax Officer was not taxing either income or profit. His business was to assess tax on sales. Why he concerned himself with the inadequacy of the percentage of profit is not clear. Assuming for the sake of argument that the above consideration was relevant for the purpose of checking the correctness of the gross-turnover, it does not appear how he arrived at the conclusion that there must have been a suppression of 10 per cent of the sales figure. Then again, he deducted the sale price of nonta-khabar, namely a sum of Rs. 84,098-0, from the gross-turnover on the ground that the same fell within the category of cooked-food which was exempt from taxation but he did not deduct from the gross-turnover the sale price of milk, namely, a sum of Rs. 16,812-0, which was equally exempt from sale tax. Lastly, he allowed an exemption of 50 percent only out of Rs. 1,03,591-67 np., under section 5 (2) (a) (i) of the Act, without disclosing how he arrived at the percentage of the exemption or at the figure Rs. 1,03,591-67 np. 6. IN the affidavit-in-opposition, filed on behalf of the respondent, Commercial Tax Officer, an additional reason is given as to why the gross-turnover was increased by 10 per cent. 1,03,591-67 np., under section 5 (2) (a) (i) of the Act, without disclosing how he arrived at the percentage of the exemption or at the figure Rs. 1,03,591-67 np. 6. IN the affidavit-in-opposition, filed on behalf of the respondent, Commercial Tax Officer, an additional reason is given as to why the gross-turnover was increased by 10 per cent. I quote below the relevant extract from the affidavit-in-opposition :- "I state that the gross-turnover was increased in view of the fact that no cash memo or bill for sales of sweetmeats was maintained by the business and the rate of gross-profit shown was very low and as such the gross-turnover of the business as stated in the return could not be accepted as correct. I further state that the gross turnover was increased by 10 per cent and exemption was granted in respect of sale of articles which is generally known as nonta khabar, as it does not fall within the category of "sweet-meat'. " The absence of cash memo or bill for sales, as a ground for disbelieving the gross-turnover, was an ornamentation introduced for the first time in the affidavit-in-opposition. The assessment order does not show that the books of account of the dealer were disbelieved on that ground. On the other hand the following passage from the assessment order reveals that the books withstood the scrutiny of the Commercial Tax Officer:- "books of account of the dealer are examined and the sale as per Khatian folio 5 (signed) is found to agree with the G. T. as per return. Test check of purchases with reference to Regr, XXIII and counterfoils of Decln. Form XXIV, do not reveal any discrepancy." 7. IF discrepancy could not be discovered or detected from the books of account, it is difficult to visualise why the absence of cash memos and bills for sales would necessarily discredit the account books. This is particularly so because it does not appear that the type of business carried on by the petitioners at all use cash memos in retail sale of nonta-khabar or sweets. 8. THE Commercial Tax Officer was proceeding under section 11 of the Bengal Finance (Sales Tax) Act. In making a best-judgment assessment, the Commercial Tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. 8. THE Commercial Tax Officer was proceeding under section 11 of the Bengal Finance (Sales Tax) Act. In making a best-judgment assessment, the Commercial Tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. He must not proceed on bare suspicion and must not make an arbitrary assessment. Dealing with similar provision as to best-judgment assessment under the Indian Income Tax Act, Lord Russell of Killowen observed in the case of Income Tax Commissioner vs. Badridas Ramrai Shop (1) (L. R. 64 I. A. 102) :- "the officer is to make an assessment to the best of his judgment against a person who is in default as regards supplying information. He must not act dishonestly, or vindictively or capriciously, because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must, their Lordships think, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by and assessments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guesswork in the matter, it must be honest guess-work. " 9. THE same view was reiterated by the Supreme Court in Dhakeswan Cotton Mills Ltd., vs. The Commissioner of Income Tax, West Bengal (2) (1955 S.C.A. 96), in the following language :- "we are in entire agreement with the learned Solicitor-General when he says that the Income tax Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on materials which may not be accepted as evidence in a court of law, but there the agreement ends; because it is equally clear that in making the assessment under sub-section (3) of section 23 of the Act, the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23 (3). There must be something more than bare suspicion to support the assessment under section 23 (3). The rule of law on this subject has, in our opinion, been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh vs. Commissioner of Income-tax, Punjab (1944) I. T. R. 393)". 10. ALSO the same view was applied, by the Supreme Court, to assessment of Sales-tax, in a case under the Bihar Sales Tax Act, in the case of Messrs. Raghubar Mondal Harihar Mondal vs. The State of Bihar (3) (1958) S. C. A. 852) and S. K. Das, J. 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 Russell 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 whether the grievance of the assessee arises. " The legal position being such as indicated above, I have to hold that both in increasing the gross-turnover by 10 per cent, or in deducting only 50 per cent of sale, taken as amounting to Rs. 1,03,591/67 np., the Commercial Tax Officer acted arbitrarily, without any material in support of his action and on bare suspicion. He made his position worse in trying to buttress up his judgment by introducing new grounds in the affidavit-in-opposition, namely, the absence of cash memo and bill of sales, which ground of suspicion he did not even reveal in his assessment order. Also he was wrong in not deducting the sale price of milk, along with the sale price of nonta-khabar, both of which were exempt from taxation under section 6 read with the Schedule to the Act. 11. Also he was wrong in not deducting the sale price of milk, along with the sale price of nonta-khabar, both of which were exempt from taxation under section 6 read with the Schedule to the Act. 11. I now turn to the other branch of the argument of Mr. Chaudhuri, namely, whether curd and Indian sweets fall outside the description of sweet-meats, which are liable to taxation. This requires an examination as to the recipes for preparation of curd and the different variety of sweets sold by the petitioners and mentioned in annexure 'a' to the petition. The materials before me are not sufficient to arrive at the decision that they satisfy the definition of the dictionary meaning of sweetmeats. 12. SINCE I hold that the judgment of the Sales Tax Officer was not a best-judgment assessment and that he was wrong in not allowing the allowable deductions, for example, the sale price of milk I have to quash the order and send back the case to the Commercial Tax Officer for assessment according to law. I allow liberty to the petitioners to agitate the question that Indian Sweets are not sweet meats, before the Commercial Tax Officer at the rehearing. This Rule is made absolute. Let a writ in the nature of certiorari issue quashing the assessment. The case will now go back to the Commercial Tax Officer for assessment according to law. There will be no order as to costs. Since the assessment is quashed, no certificate proceedings can be taken on the basis of the said assessment. The respondent Certificate Officer must not take further steps in execution of the certificate. The security furnished by the petitioner in this Rule may now be refunded to the solicitor for the petitioner.