JUDGMENT M. RAMA JOIS, J. - This revision petition is presented under section 23(1) of the Karnataka Sales Tax Act, 1957, against the order of the Karnataka Appellate Tribunal dismissing the appeal presented by the petitioner and confirming the order of the assessment made under section 12(3) of the Act against the petitioner for the assessment period commencing from April 1, 1978 to March 31, 1979. 2. The facts of the case in brief are as follows : The assessee is a registered dealer under the Act having its principle place of business Santhepet, Mysore. The petitioner is a jaggery merchant. On July 25, 1980, a notice in the prescribed form No. 31-A was issued to the assessee. The notice reads : "Whereas I am of the opinion that the return of turnover in form 4 of the year ending March 31, 1979, submitted by you is incorrect and incomplete, I propose to determine your total and taxable turnovers for the said period to the best of my judgment at Rs. (overleaf) and Rs. (overleaf) respectively. The reasons for non-acceptance of the return and the basis of the proposed assessment are furnished below. You are hereby called upon to show cause against the proposed assessment adducing evidences, if any, either in person or through a legal practitioner or an agent authorised in writing at 11-00 A.M. within 7 days at my office at Mysore failing which it will be presumed that you have no objections to the proposed assessment and order as fit will be passed. It is seen from the verification of the accounts that you have declared the turnover of Rs. 5,07,351.88 and taxable turnover of Rs. 84,427.11. You have claimed exemptions on the rest of the turnover. You are asked to file certificate for payment of tax in respect of consignment sales effected by your commission agent. You have also not produced copies of the sale pattis for cross verification. Further you are requested to intimate the total value of the jaggery purchased though the merchants ar R.M.C., Mandya. The information may please be furnished immediately." As can be seen from the contents of the notice, the assessing authority was of the opinion that the returns submitted by the petitioner in form 4 for the year ending March 31, 1979, was incorrect. To the said notice, the petitioner submitted his reply on July 30, 1980. The information may please be furnished immediately." As can be seen from the contents of the notice, the assessing authority was of the opinion that the returns submitted by the petitioner in form 4 for the year ending March 31, 1979, was incorrect. To the said notice, the petitioner submitted his reply on July 30, 1980. It reads : "Sub : Regarding your 31-A notice for the year 1978-79. ---------------------- With reference to the above we would like state that we have written to all the registered dealers to whom we had sent goods for sales to send the certificates with regard to the payment of tax. We are herewith submitting the statement showing the details of the names and addresses of the dealers whose sale pattis have been received. It may take some time to collect all the certificates from the dealers. We request you to give some time, at least two months for the same. In the meanwhile you forward the statement we have submitted for the cross verification. As soon as we receive the certificates, we will submit the same for your perusal." Thereafter on the basis of the information collected by the Commercial Tax Officer (Intelligence), a proposition notice was issued to the petitioner. It reads : "Dated 16-10-1980. PROPOSITION NOTICE To M/s. V. Pappanna and Bros., Jaggery Merchant, Santhepet, Mysore. Whereas I am of the opinion that the return of turnover in form 4 of the year ending March 31, 1979, submitted by you is incorrect and incomplete, I propose to determine your total and taxable turnovers for the said period to the best of my judgment at Rs. (overleaf) and Rs. (overleaf) respectively. The reasons non-acceptance of the return and the basis of the proposed assessment are furnished below. You are hereby called upon to show cause against the proposed assessment, adducing evidences, if any, either in person or through a legal practitioner or an agent authorised in writing at 11-00 A.M. on October 24, 1980, at my office at Mysore failing which it will be presumed that you have no objections to the proposed assessment and order as deemed fit will be passed. In the proposition notice dated July 25, 1980, you are called upon to produce the sale pattis for having sold the jaggery on commission basis which you have not filed. In the proposition notice dated July 25, 1980, you are called upon to produce the sale pattis for having sold the jaggery on commission basis which you have not filed. Further it is also found that you have purchased jaggery worth Rs. 89,525 through R.M.C., Mandya as under : ---------------------------------------------------------------------- Sl. Date R.M.C Cess Value of jaggery No. Folio paid purchased ---------------------------------------------------------------------- 1. 23-7-1978 A3 215 120.00 6,000.00 2. 4-10-1978 230 120.00 6,000.00 3. 6-10-1978 230 120.00 6,000.00 4. 28-10-1978 230 60.00 6,000.00 5. 12-11-1978 236 60.00 6,000.00 6. 26-11-1978 236 60.00 6,000.00 7. 23-1-1979 236 60.00 6,000.00 8. 16-11-1978 237 60.00 6,000.00 9. 15-10-1978 232 120.00 6,000.00 10. 16-10-1978 232 120.00 6,000.00 11. 17-10-1978 232 120.00 6,000.00 12. 29-9-1978 231 120.00 6,000.00 13. 18-11-1978 239 60.00 6,000.00 14. 6-7-1978 211 120.00 6,000.00 15. 12-3-1978 252 55.00 5,525.00 ---------------------------------------------------------------------- The above transactions were not verifiable with reference to your accounts to shown that they been accounted. You are, therefore, given one more opportunity to produce the accounts and other documents supporting the proof that have accounted for the same. Further as you have failed to produce the sale bills for having sold jaggery on commission basis, the exemptions claimed by you as a commission agent is not acceptable in the absence of proof. Therefore, if no proof is produced, the commission sales effected by you will be assessed as an independent sale by yourselves and the turnover of taxable goods also will be determined as under : Commission sales declared without producing the proof treated as own sale ... Rs. 4,47,460.11 Local sales estimated ... Rs. 1,83,000.00 ----------------- Rs. 6,29,460.31 2% Rs. 3,360 If you have got any objections to the said proposal you may file the same by producing the documents and also appear before the undersigned for further verification and hearing on October 24, 1980. Sd. Commercial Tax Officer, II Circle, Mysore City." To the said notice the petitioner furnished his reply on October 24, 1980. It read : "Received your proposition notice in that you have mentioned Mandya R.M.C. Cess, so we have no connection in that, we have given the turnover is correct and perfect. We do not know that Mandya R.M.C. cess written in our name. So that what we have given turnover is correct. It read : "Received your proposition notice in that you have mentioned Mandya R.M.C. Cess, so we have no connection in that, we have given the turnover is correct and perfect. We do not know that Mandya R.M.C. cess written in our name. So that what we have given turnover is correct. About the commission sales, our parties who were going to send the declaration within 15 days, then we bring the same show you declaration within 15 days, then we bring the same and show you definitely without fail. So that please assess our accounts and order. We sure that you are going to oblige us - requesting." Thereafter, the assessing authority proceeded to make a best of judgment assessment. This was done on the basis of the jaggery purchased by the petitioner at the market committee, Mandya. He levied a tax of Rs. 3,360 and also additional tax under section 68 of the Act at 7.5 per cent. Further in exercise of his power under sub-section (4) of section 12 of the Act, the assessing authority levied a penalty of Rs. 2,000. Aggrieved by the said order, the petitioner presented an appeal before the Deputy Commissioner. In the appeal, it was contended for the petitioner that the information supplied by the market committee collected behind the back of the petitioner was relied on and that it was opposed to the rules of natural justice. The contention was rejected by the appellate authority on the ground that as in the proposition notice, the assessing authority specifically proposed to make an assessment on the basis of the information gathered from the market committee if the petitioner desired to cross-examine the concerned officer of the R.M.C. authority, he should have made such a request before the assessing authority and having not done so, the contention of the petitioner was untenable. Aggrieved by the said order, the matter was taken up in second appeal before the Karnataka Appellate Tribunal an the Tribunal also dismissed the appeal rejecting the contention of the petitioner that placing reliance on the information supplied by the market committee without giving an opportunity to the petitioner to cross-examine the concerned officer of the market committee, was untenable as the petitioner did not seek such an opportunity. Aggrieved by the said order, the petitioner has presented this petition. 3. Aggrieved by the said order, the petitioner has presented this petition. 3. Learned counsel strenuously contended that when the assessing authority proposed to make an assessment on the basis of the information collected from the market committee, the principles of natural justice demanded that the said authority should have summoned the concerned officer of the market committee to appear before him so that the petitioner could cross-examine the said officer and as there was failure to do so, there was violation of rules of natural justice. He submitted that on this ground only the order of the assessing authority and the orders of the first and second appellate authorities were liable to be set aside. In support of his contention he relied on the judgment of the Supreme Court in State of Kerala v. K. T. Shaduli Yusuff [1977] 39 STC 478. In the said case, the Supreme Court held that before making best judgment assessment relying on information supplied by, or secured from, third person, an opportunity to cross-examine the person concerned should be given, and any denial of the request for cross-examination of such third person, from whom information is collected would be violative of the rules of natural justice. 4. As can be seen from the facts in that case, in respect of the assessee concerned therein a proposition notice was issued on the ground that certain sales appearing in the books of account of Haji Usmankutti had not been included in the returns filed by the assessee and was not accounted for in the books of account maintained by the assessee. When such a proposition notice was issued, the assessee in that case applied to the Sales Tax Officer for affording him an opportunity to cross-examine Haji Usmankutti, with regard to the correctness of his action. This opportunity was denied. When such a proposition notice was issued, the assessee in that case applied to the Sales Tax Officer for affording him an opportunity to cross-examine Haji Usmankutti, with regard to the correctness of his action. This opportunity was denied. The appeals against that order were also unsuccessful and when the matter came up before the Supreme Court, the Supreme Court held that the Sales Tax Officer wanted to rely upon the information secured from the account books of Haji Usmankutti and the assessee applied to the Sales Tax Officer for affording him an opportunity to cross-examine, the opportunity ought to have been given and failure to do so on the part of the Sales Tax Officer was not only violation of section 17(3) of the Kerala General Sales Tax Act, but also violative of rules of natural justice. 5. The submission made by the learned counsel relying upon the ration of the aforesaid decision would have been unexceptionable, if after the receipt of the proposition notice the assessee had sought for an opportunity to cross-examine the concerned officer of the market committee, who had supplied the information to the department regarding the sales of jaggery in respect of which it was stated that the petitioner had paid market fee to the market committee. As can be seen form the reply furnished by the petitioner contented himself by merely denying the information regarding the purchase of jaggery from the market committee furnished in the proposition notice. He did not choose to request the assessing authority to issue notice to the concerned officer to appear before him and expressing his desire to cross-examine him. Therefore, the assessing authority proceeded to accept the information supplied by the market committee and particularly on the ground that it was a statutory authority and there was no reason to suspect the account maintained by the market committee and accordingly made the best of judgment assessment. Having made the assessment the assessing authority also exercised its power under sub-section (4) of section 12 of the Act to impose the penalty of Rs. 2,000. 6. Learned counsel for the petitioner does not dispute that the petitioner did not make any request before the assessing authority to cross-examine the concerned officer of the market committee. Having made the assessment the assessing authority also exercised its power under sub-section (4) of section 12 of the Act to impose the penalty of Rs. 2,000. 6. Learned counsel for the petitioner does not dispute that the petitioner did not make any request before the assessing authority to cross-examine the concerned officer of the market committee. He, however, submitted that he wanted such an opportunity before the first appellate authority and also before the second appellate authority and those authorities were not justified in not granting the request. Particularly with reference to the first appellate authority, learned counsel submitted that by virtue of rule 50 of the Rules, the power of the appellate authority was co-extensive with the power of the original authority and, therefore, the first appellate authority ought to have given him the opportunity to cross-examine the concerned officer of the market committee. 7. We are unable to agree. If in the final order of assessment made by the assessing authority under section 12(3) of the Act, the assessing authority had relied upon any information secured from any person, of which the petitioner had no notice or had refused to give opportunity to cross-examine the person from whom any information had been collected on the basis of which action was initiated, the petitioner could have requested the appellate authority either to send back the matter with a direction to the assessing authority to give an opportunity to cross-examine the concerned person who had furnished such information or to give an opportunity to cross-examine the said person before the first appellate authority itself, in which event, the appellate authority was bound to grant either of the requests. But in a case like this, when the petitioner did not choose to seek an opportunity to cross-examine the officer of the concerned market committee, even though in the proposition notice, the petitioner was informed that the proposition notice was based upon the information supplied by the market committee, he cannot be heard to contend that if such a request is made before either the first appellate authority or second appellate authority, they were bound to grant the same. As stated earlier, when the ground was raised before the first appellate authority, it was pointed out that such a request was not made before the assessing authority and, therefore, it cannot be said that no opportunity was given to the petitioner and, therefore, would not constitute a ground for setting aside the assessment. For the same reason, the Tribunal also rejected the contention. It is no doubt true that in the order of the second appellate authority, it is stated that no such request was made even before the first appellate authority, which is factually incorrect. In fact as pointed out earlier, for the first time before the first appellate authority the petitioner did ask for an opportunity to cross-examine the officer of the market committee from whom information had been collected and the request was rejected by the first appellate authority on the ground that no such request had been made before the assessing authority. There can be no doubt that if such a request had been made before the assessing authority and the assessing authority had denied that request, the first appellate authority was bound to grant the request either by setting aside the order of the assessing authority or to summon the concerned officer of the market committee before it and to give an opportunity to the petitioner to cross-examine the concerned officer. Therefore, we find no substance in the contention. 8. Learned counsel for the petitioner also relied on the judgment in Kalra Glue Factory v. Sales Tax Tribunal [1987] 66 STC 292 (SC). The details of the facts of the case are not available. However it is seen from the head-note, that the complaint of the petitioner therein was that the statement of one Bankelal had been relied on the by the Tribunal, whose statement had been recorded behind the back of the appellant therein and the appellant had no occasion to test the veracity of this statement by cross-examination. In the present it is not the case of the petitioner that the information collected from the market committee was not put to him. Even after the same was put to him, the petitioner did not choose to seek an opportunity to cross-examine the concerned officer of the market committee. Therefore, this decision is also of no assistance to the petitioner. 9. Even after the same was put to him, the petitioner did not choose to seek an opportunity to cross-examine the concerned officer of the market committee. Therefore, this decision is also of no assistance to the petitioner. 9. In the result, we make the following order : (i) The revision petition is dismissed. (ii) No costs. Petition dismissed.