JUDGMENT : ( 1. ) BY this petition under Article 226 of the Constitution of india, the petitioner M/s Anshiram Chatramal,grain-merchants, Dabra, District gwalior, seeks a writ in the nature of certiorari for quashing the ex parte order of assessment passed by the Sales Tax Officer, Flying Squad, Gwalior, dated 29-7-1972. The petitioner went up in revision, but by his order dated 10-8-1973 the Deputy Commissioner of Sales Tax, Gwalior Division, Gwalior refused to interfere with the said order of assessment. ( 2. ) ON 28 7-1970, the Flying Squad of the Sales Tax Department checked the business premises of the petitioner-firm and seized account books. After scrutiny of the accounts, a notice was issued by the Sales Tax Officer, Flying squad, Gwalior, in Form No. XVI for assessment under section 18 (4) (d) of the M. P. General Sales Tax Act, 1958, and levy of penalty under section 17 (3)of the Act. The Sales Tax Officer, Flying Squad, Gwalior, in the order of assessment dated 29-7-1972 relied on the report of the Assistant Sales Tax officer, Flying Squad, wherein a statement was prepared by him treating sales to the extent of Rs. 1,43,615. 00 as unaccounted for in the account books of the petitioner-firm. The explanation of the petitioner-firm was that the report was based on book No. 6, wherein an entry relating to the goods sent by truck for being sold through Adhatiyas has been made. ( 3. ) IT was said that, as per practice, after the adhatiyas sold the goods sent to them and remitted the sale-proceeds to the petitioner-firm, the same was entered in the Rokad. It was, therefore, urged that the report of the Assistant sales Tax Officer, Flying Squad, could, under no circumstances form the basis for the best judgment assessment. The Sales Tax Officer, Flying Squad, Dabra, rejected the explanation of the petitioner, and called for information of the transaction effected by the petitioner-firm from the Income-tax Department. ( 4. ) ON the basis of the information so collected, the Sales Tax Officer, flying Squad, estimated the gross turn-over of the petitioner for the year in question and for the assessment year 1969-70 at Rs. 5,00,000. 00 and deducted therefrom Rs. 10,000 as representing sales of Tax-free goods under section 10 and also Rs. 8,000 as tax-paid sales. ( 4. ) ON the basis of the information so collected, the Sales Tax Officer, flying Squad, estimated the gross turn-over of the petitioner for the year in question and for the assessment year 1969-70 at Rs. 5,00,000. 00 and deducted therefrom Rs. 10,000 as representing sales of Tax-free goods under section 10 and also Rs. 8,000 as tax-paid sales. After making these deductions, the Sales tax Officer, Flying Squad determined the taxable turnover of the petitioner-firm at Rs. 4,82,000. 00, out of which sales worth Rs. 4,81,000. 00 were held to be taxable at the rate of 2% and transaction worth Rs. 1,000. 00 taxable at the rate of 7%. In addition, he also held that transactions worth Rs. 3,50,000. 00 were to be taxable at 2% for purchase-tax. Thus, the total tax liability of the petitioner firm was determined at Rs. 16,690. ( 5. ) SHRI Kamle, learned counsel for the petitioner, however, contends that even for a best judgment assessment, there must be some material. He contends on the strength of a decision of the Supreme Court in Raghubar mandal Harihar Mandal v. The State of Bihar ( (1957)8 STC 770) that the Sales Tax Officer could not adopt the figure of Rs. 5,00,000 as the gross turnover of the petitioner-firm without any evidence or any material at all. It is urged that when an officer has to make an estimate to the best of his judgment, he must not act arbitrarily or without basing the assessment on any materials whatsoever, but must make what he honestly believes to be a fair estimate of the proper figure of assessment, taking into consideration the assessees circumstances and his knowledge of previous returns and all that materials which the assessing officer thinks will assist him in arriving at a fair and proper estimate. The learned counsel has also brought to our notice a decision of a Division Bench of this Court in bhagwandas Khandelwal v. The Commissioner of Sales Tax, Madhya Pradesh, indore and others ( (1971) 27 STC 388 ) laying down that a best judgment assessment based on previous years assessment is not a best judgment assessment at all. ( 6. ) IT cannot be said that the Sales Tax Officer, Flying Squad, has indulged in poor guess work and made the assessment without referring to any evidence or any material at all. ( 6. ) IT cannot be said that the Sales Tax Officer, Flying Squad, has indulged in poor guess work and made the assessment without referring to any evidence or any material at all. The law on the subject is well-settled. Lord russell of Killowen in delivering the judgment of their Lordships of the Privy council in Income-tax Commissioner v. Badridas Ramrai Shop, Akola ( (1937) 5 ITR 170.) made the following observations as respects a "best of judgment" assessment within the meaning of section 23 (4) of the Indian Income Tax Act: "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 assessees circumstances, and his own knowledge of previous returns by and assessments of the assessee, and all other matters which he thinks will assist him arriving at a fair and proper estimate; and though there must necessarily be guess-work in the matter, it must be honest guess-work. " These observations were quoted with approval by their Lordships of the supreme Court in Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-Tax, west Bengal ( (1955) 26 ITR 775. ). ( 7. ) IN Raghubar Mandal Harihar Mandal v. State of Bihar, S. K. Das, J. speaking for their Lordships 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 evidences 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 assessees 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 assessees arises. " That test is, in our opinion, clearly fulfilled in the present case. No doubt, the sales Tax Officer, Flying Squad rejected the books of account of the petitioner. But the fact remains that in making the estimate he has taken into consideration all the circumstances. It cannot be said that in determining the gross-turnover at Rs. 5,00,000. 00, the Sales Tax Officer, Flying Squad, has acted capriciously or arbitrarily or on mere conjectures and surmises. For the two quarters, viz. , 10-11-1969 to 6-2-1970 and 7-2-1970 to 5-5-1970, the petitioner filed returns disclosing the gross-turnover of Rs. 1,48,347. The books seized by the Assistant sales Tax Officer, Flying Squad, show that sales to the extent of Rs. 1,43,618. 00 were unaccounted. The gross-turnover of the petitioner for the assessment year 1968-69 was Rs. 5,68,932. 37. The Sales Tax Officer, Flying Squad, therefore, had taken what he honestly believed to be a fair and proper estimate. In such cases, there must necessarily be an element of guess-work. ( 8. ) THE next contention that the Sales Tax Officer, Flying Squad, acted in breach of rules of natural justice cannot be accepted. It is well-settled that before making best judgment assessment, a reasonable opportunity must be given to the dealer under subsection (4) of section 18 of the M. P. General sales Tax Act, 1958, read with Rule 33 of the M. P. General Sales Tax Rules, 1959, to prove the correctness or completeness of the return submitted by him. It cannot, however, be said that in this particular case the petitioner was afforded no opportunity. On the contrary, the petitioner absented himself from the proceeding after a particular stage. On 30-6-1972, the petitioner through his counsel filed a medical certificate showing that Anshiram, one of the partners, was unwell. The case was, therefore, abjourned to 15-7-1972. On 15-7-1972 an adjournment was sought by the petitioners counsel stating that Anshiram had gone out. The Sales Tax Officer refused to grant adjournment and closed the case for orders. On 17-7-1972 Anshiram sent a telegram seeking adjournment on the ground of illness. The case was, therefore, abjourned to 15-7-1972. On 15-7-1972 an adjournment was sought by the petitioners counsel stating that Anshiram had gone out. The Sales Tax Officer refused to grant adjournment and closed the case for orders. On 17-7-1972 Anshiram sent a telegram seeking adjournment on the ground of illness. This is a contradiction in terms that while the counsel was seeking adjournment on the ground that his client had gone out, the client was lying ill at Dabra. It is quite evident that the petitioner was trying to protract and delay the proceedings. The Sales Tax Officer, therefore, had no other alternative but to proceed ex parte. ( 9. ) THE result, therefore, is that the writ petition fails and is dismissed. No order as to costs. The security amount deposited by the petitioner may be refunded to him. Petition dismissed.