JUDGMENT K. P. BALANARAYANA MARAR, J. - Common questions of law arise in these tax revision cases. The assessee is a dealer in what is called Indian-made foreign liquor. We are concerned with the assessment years 1981-82 and 1982-83. For these years, the Assistant Commissioner (Assessment), Special Circle I, Ernakulam, estimated the turnover on a best judgment basis after rejecting the books of account maintained by the assessee as unreliable. The appeal preferred against the assessment order was dismissed. On further appeals before the Tribunal the rejection of books of account for these two years was confirmed. But the matter was remanded to the assessing authority to revise the assessments. Thereafter, revised assessments were made, which were appealed against by the assessee. Those appeals were dismissed. The matter was given taken up in second appeal before the Sales Tax Appellate Tribunal. As per order dated June 30, 1987 the Tribunal remanded the case to the assessing authority for the limited purpose of verifying the claim of the appellant regarding special discount allowed on sales, loss due to the breakage and correctness of the amount shown as excise duty paid in the accounts of the appellant and to examine whether packing charges incurred on purchases from outside the State was included in the purchase turnover. The department challenged the order of the Tribunal in Tax Revision Cases Nos. 137 and 138 of 1988 before this Court. This Court found that the Tribunal has not passed orders on two petitions and the affidavit filed by the assessee explaining the circumstances under which he was unable to produce certain books of account and sale bills before the assessing authority. Due to that procedural illegality the order of the Tribunal was set aside by this Court as per order dated June 28, 1989, without entering into the merits of the case. The Tribunal was directed to restore the appeals T.A. Nos. 1141 and 1142 of 1987 to file and to dispose of them afresh. 2. After remand the Tribunal passed orders on interlocutory petition. That petition was allowed and the documents produced along with that petition and the affidavit dated February 3, 1989, were admitted in evidence. The Tribunal was directed to restore the appeals T.A. Nos. 1141 and 1142 of 1987 to file and to dispose of them afresh. 2. After remand the Tribunal passed orders on interlocutory petition. That petition was allowed and the documents produced along with that petition and the affidavit dated February 3, 1989, were admitted in evidence. After hearing the counsel for the assessee and the law officer for the State the Tribunal by majority of two to one allowed both the appeals in part and held that determining the turnover by making an addition of 15 per cent to the taxable turnover of Indian-made foreign liquor as per books of account of the appellant for both the years will be a just, fair and reasonable estimate. The contention of the department that the assessee had suppressed this turnover by showing special discount, which is of benami nature as allowed on sales was found to be not properly proved and established. Considering the facts and circumstances of the case the Tribunal opined that it is just and fair to determine the turnover of both the years based on the sales turnover of the assessee as per his books of account. The assessing authority was directed to modify the assessment orders of both the years in the light of the observations contained in the order of the Tribunal. Hence these two tax revision cases by the Revenue. 3. The main contention raised by learned counsel for the revision petitioner relates to the special discount allowed by the assessee on sale of Indian-made foreign liquor. The assessee has accounted only the net sale proceeds in the books of account and the special discount allowed for each year cannot be quantified from those account books. That will be discernible only from the sale bills issued by the assessee. While considering the legality of the assessment for the year 1983-84 which also dealt with the special discount the Appellate Tribunal in T.A. No. 901/84 has directed the assessing authority to consider the question afresh and come to a finding. That will be discernible only from the sale bills issued by the assessee. While considering the legality of the assessment for the year 1983-84 which also dealt with the special discount the Appellate Tribunal in T.A. No. 901/84 has directed the assessing authority to consider the question afresh and come to a finding. The relevant part of the order which is extracted in the order under revision runs thus : "If he finds that the special discount allowed by the appellant in the sale bills are deductible and permissible under rule 9(a) of the Kerala General Sales Tax Rules, the assessing officer will quantify such discounts allowed for the years 1981-82 and 1982-83 and give credit to such discount from the taxable turnover". It appears that the assessing authority had issued notice to the respondent to produce their books of accounts of enable the assessing authority to make a reassessment as directed by the Tribunal. Respondent failed to produce the books of account and the sale bills in spite of several notices issued to him. The assessing authority was therefore constrained to overrule the objections raised by the respondent in reply to the pre-assessment notice and the assessment for these years were completed more or less on the same turnover as in the original assessments. When the matter came up before the Tribunal again the respondent had produced some documents along with an interlocutory application. The Tribunal did not place much reliance on these documents and observed that the documents have little evidentiary value. Still the Tribunal placed reliance on the affidavit produced by the respondent and the reasons mentioned therein. 4. It is strenuously contended by the learned Government Pleader that the Tribunal should not have admitted the affidavit and relied on the same in view of the specific direction contained in the earlier order of the Tribunal affording an opportunity to the respondent to produce the sale bills on order to claim deductions under rule 9(a) of the Kerala General Sales Tax Rules. The contention is that the respondent having failed to produce the sale bills could not claim any deduction by way of sale discount. The contention is that the respondent having failed to produce the sale bills could not claim any deduction by way of sale discount. In paragraph 9 of the order of the Accounts Member, which order was agreed to by the Chairman, it is observed that the State Representative has not disputed any of the contentions raised by the appellant regarding the reasons mentioned by him for not producing the entire records relating to the orders under appeal at the time of reassessment proceedings. It is also observed that the State Representative has not objected to the contentions of the appellant that all the books of account and other connected records were produced before the assessing authority at the time of original assessment. The Tribunal found some force in the explanation given by the learned counsel for the appellant regarding the reasons for the non-production of the entire books and records before the assessing authority. In that affidavit filed by the respondent he had mentioned the reason why he was unable to produce the books of account and the sale bills. He was involved in a crime in connection with Vypeen liquor tragedy case and there were a large number of raids and searches in his office and some of the records were seized by the police. He had been in and out of jail for a considerable period. He was enlarged on bail in early 1985, but he could not move freely on account of the conditions of bail. He was thereafter implicated in another case and confined in jail in Visakhapatanam. He was granted bail in that case, but he was prohibited to leave Visakhapatanam till the end of April, 1986. Most of his staff left his service in the meantime and his office was shifted from place to place. His books of account relating to the assessment orders under appeal were misplaced and could not be tracted out. He therefore stated that he could not produce the books of account and the sale bills due to reasons beyond his control. The Tribunal accepted this explanation and observed that there is some force in the explanation given by the respondent. 5. He therefore stated that he could not produce the books of account and the sale bills due to reasons beyond his control. The Tribunal accepted this explanation and observed that there is some force in the explanation given by the respondent. 5. Learned counsel for the respondent points out that the Tribunal having believed the averments in the affidavit filed by the respondent, that is an end of the matter as far as the facts mentioned therein are concerned and that there is nothing wrong in the Tribunal basing its conclusion on those averments. In this connection we are referred to the decision of the Supreme Court in [1961] 42 ITR 112 (Gouri Prasad Bagaria v. Commissioner of Income-tax). In that case the Income-tax Officer declined to accept the explanation offered by the assessee in respect of an amount withdrawn. On further appeal, the Tribunal accepted that explanation and the amount was ordered to be excluded. The High Court held that there was no material before the Tribunal. On further appeal, the Supreme Court held that the Tribunal had believed the assessee's word in view of his conduct and past history and where the assessee's statement is believed, there is obviously material on which the finding is based. It was further held that the Tribunal having believed the assessee's statement, there was an end of the matter in so far as that fact was concerned, and if the finding was based upon a statement which was good material on which it could be based, no question of law really arise. In the present case the Tribunal had relied on the affidavit of the respondent and that is a material on which the finding of the Tribunal is based. That finding is a finding of fact which cannot be revised by this Court in revision, unless it is based on no material, or illegal or irrational. None of these infirmities exist herein. 6. According to the Tribunal, the question whether special discount is allowable or not is a question of fact to be decided having regard to the various facts of each case. It is observed by the Tribunal that the assessing authority has not pointed out any specific instance to substantiate his allegation that the appellant has actually collected the amount stated to have been granted as special discount. It is observed by the Tribunal that the assessing authority has not pointed out any specific instance to substantiate his allegation that the appellant has actually collected the amount stated to have been granted as special discount. The assessing authority in its original assessment order for 1981-82 had considered the objections raised by the respondent regarding the allowability of special discount. While doing so, it had perused the invoices and ascertained the average cost per case of beer. The cost price in Kerala will be not less than Rs. 53 per case. But the respondent had sold the same at Rs. 40.50 per case as per the sale bill No. 39/81-82 dated June 29, 1981. According to the assessing authority this is the method adopted by the dealer in suppressing his sales turnover. The Tribunal observed that the respondent would have sold the goods even below the cost price in order to capture the market and retain the dealership with the hope to recover the loss in future. It is also pointed out by the Tribunal that the assessing authority could have scrutinised the books of account of the retailers to whom respondent had supplied liquor to ensure that the appellant has not actually allowed any discount. It is contended by learned counsel for the Revenue that the Tribunal has cast a burden on the department in a case where the assessee was bound to prove that fact in view of the direction given by the Tribunal earlier. True, the assessing officer was directed to quantify such discount on the basis of the sale bills produced by the assessee. On his failure to produce the same the assessing authority could not quantify such discounts and hence the reason why that authority added an amount of Rs. 1,50,000 towards purchase price and the sales turnover of the liquor was estimated by 10 per cent gross profit of the purchase turnover so estimated. While considering this aspect the Tribunal stated that the assessing authority has no materials in hand to prove that the assessee had suppressed his turnover for the relevant years. It is in this connection that the Tribunal observed that the assessing authority could have scrutinised the books of account of the retailers to whom the appellant had supplied liquor in order to ascertain whether any discount was really allowed or not. It is in this connection that the Tribunal observed that the assessing authority could have scrutinised the books of account of the retailers to whom the appellant had supplied liquor in order to ascertain whether any discount was really allowed or not. The assessing authority has not done anything in this connection. The Tribunal ultimately held that the assessing authority has no material in hand to prove that the appellant suppressed his turnover for these years. The Tribunal opined that the burden is on the department to establish their allegation that the appellant has understated the sales consideration in his books of account. That allegation was not properly established nor was any evidence adduced. The Tribunal was therefore not prepared to accept the defect pointed out as well-founded. 7. The books of account of respondent were found to be unreliable by the Tribunal and best judgment assessment had to be resorted for both the years under appeal. The assessing authority has determined the turnover on best judgment based on the purchases effected. The Tribunal found no material to suspect the veracity of the sale price disclosed in the books of account for both the years under appeal. It is observed by the Tribunal that the assessee is at liberty to fix the selling price according to the particular nature of his business and other relevant circumstances. According to the Tribunal, the appellant has given convincing explanation for low selling price fixed for Indian-made foreign liquor. It was after considering these facts and circumstances that the Tribunal opined that it is just and fair to determine the turnover of both the years based on the sales turnover of the appellant relating to Indian-made foreign liquor as per his books of account. The Tribunal is also of the opinion that the defects pointed out by the assessing authority do not justify such a huge addition to the conceded turnover for both the years. The Tribunal held that an addition of 15 per cent of the taxable turnover as per books of account for both the years will be a just, fair and reasonable estimate. Ultimately the Tribunal directed the assessing authority to modify the assessment orders of both the years in the light of these findings. The Tribunal being the ultimate fact-finding authority, it is within its rights to render the findings on questions of fact. Ultimately the Tribunal directed the assessing authority to modify the assessment orders of both the years in the light of these findings. The Tribunal being the ultimate fact-finding authority, it is within its rights to render the findings on questions of fact. Though the Tribunal had agreed with the assessing authority in rejecting the books of account the Tribunal has accepted the explanation offered by the respondent why he was unable to produce the sale bills and books account. It was after accepting that explanation that the Tribunal estimated the turnover by making an addition of 15 per cent to the taxable turnover as per books of account. The Tribunal has thus accepted the explanation of the assessee why he was unable to produce the account books and the sale bills. This is a finding on a question of fact, entered by the Tribunal. Material was available before the Tribunal in the form of an affidavit, which the Tribunal, accepted in evidence. Here is therefore a case where there is some evidence to support the finding of the Tribunal on a question of fact. This Court cannot go behind that finding. In the circumstances the Tribunal cannot be said to have committed an error of law in determining the turnover of both the years based on the sales turnover of the appellant as per his books of account and in adding 15 per cent of that turnover. No error of law has been committed by the Tribunal. These tax revision cases are without merit and are hereby dismissed. Petitions dismissed.