JUDGMENT : I. Mahanty, J. - The present sales tax revision has come to be filed by the petitioner- M/s. Laxmi Lime Centre, Sambalpur under Section 24 of the Orissa Sales Tax Act, 1947 seeking to challenge the order dated 02.06.2004 passed in S.A. No. 2788 of 1995-96 by which order, the Sales Tax Tribunal, Cuttack has reversed the first appellate order and came to direct recalculation of the tax demand and imposed penalty @ 25% on the petitioner. 2. Mr. M.L. Agarwalla, learned counsel for the petitioner has submitted that the petitioner was an unregistered dealer, essentially dealing with resale of cement and associated products. The sale turnover of the petitioner was below the exemption limit of Rs. 2,00,000/- (during the year 1993-94) and, therefore, was not liable to be assessed. It is further submitted on behalf of the petitioner that the petitioner had started a retail business in the district of Sambalpur on and from 03.09.1991. The petitioner purchased goods locally within the State of Orissa, on payment of tax and such tax paid goods was sold by the petitioner for small margins of profit. It is declared that no purchases were effected by the petitioner from outside the State of Orissa. The petitioner essentially dealt "with first point tax paid goods" i.e. cement and few other goods i.e. lime stone, colour, water proof powder etc. purchased from local registered dealers, who in turn had collected tax and such liability consequently devolved on the selling dealers. The petitioner was not required to get himself registered under the Act, since his turn over had not exceeded the threshold limit of Rs. 2,00,000/- as provided under the Act. Mr. Agarwalla, learned counsel for the petitioner further submitted that on 10.09.1993, the Circle Inspector of Sales Tax paid a visit to the business premises of the petitioner, verified the stock, purchase memos, purchase register maintained by the petitioner including the cement sale bills which were issued to the customers on demand. It appears that a statement was recorded by the Inspector of Sales Tax but, it is most important to note herein that no discrepancy was found nor is there any allegation of suppression. It appears that a statement was recorded by the Inspector of Sales Tax but, it is most important to note herein that no discrepancy was found nor is there any allegation of suppression. In spite of such fact, it appears that the Inspector forwarded a report to the Sales Tax Officer and the Sales Tax Officer proceeded to assess the petitioner based on "Best Judgment Assessment" and estimated the average daily sale of the petitioner at Rs. 400/- in the year 1991 up to Rs. 800/- in the year 1993 and, accordingly, assessed the petitioner for the year 1993-94 and raised demand and levied penalty thereon. 3. The petitioner filed a first appeal and the said appeal was allowed quashing the demand of penalty to the following effect: "Heard the learned Advocate. Gone through the orders of assessment and grounds of appeal. Prima-facie the learned Assessing Officer has relied on the I.S.T's report, who visited the business premises on 10.09.93. The appellant has started his business from 3.9.91 i.e. the first purchase and has maintained purchase register with supporting purchase vouchers. Neither the I.S.T. nor the learned Assessing Officer has any ground or evidence to declare the same as incorrect nor any deficiency was noticed in the purchase register. Further, it is noticed that as per the said purchase register the appellant has effected the following purchases and sale of cement as per sale bills noted against each. Period Purchase Sale 1991-92 81428 57705 1992-93 85110 1,04,627.00 1993-94 1,19,650.00 1,50,570.00 For the year 93-94 total purchases were Rs. 1,33,254.80. Out of the same purchase of cement was for Rs. 1,19,650.00. So the balance amount of other purchases comes to Rs. 13,604.80. The appellant has disclosed sale of cement for Rs. 1,50,570.00 which is enhanced by 10% to determine the sales turnover of the same for Rs. 1,65,627.00. Regarding other items the purchases are enhanced by 20% to determine the sale turnover of Rs. 16,325.76. Thus the sales turnover during 93-94 comes to Rs. 1,81,952.76 which is below the exemption limit of Rs. 2,00,000/-. Therefore the appellant is not liable to pay any tax during the year 93-94. As such the assessment against the appellant are hereby deleted". 4. 16,325.76. Thus the sales turnover during 93-94 comes to Rs. 1,81,952.76 which is below the exemption limit of Rs. 2,00,000/-. Therefore the appellant is not liable to pay any tax during the year 93-94. As such the assessment against the appellant are hereby deleted". 4. It appears that the State being aggrieved by the first appellate order, moved the Sales Tax Tribunal in second appeal and the second appeal has come to be allowed by order dated 02.06.2004 with the further direction that the taxable turnover (TTO) be reduced from 16% to 12% and penalty should be levied @ 25% of the demanded amount. 5. The essential issue that arises for consideration in the present case is, as to whether on the facts and circumstances of the case fixation of accrual of liability with effect from 01.04.1993 is legally correct, justified and proper or not. 6. Mr. Agarwalla, learned counsel for the petitioner in support of the revision petition vehemently submitted that since the report of the Inspector of Sales Tax, who inspected the petitioner premises on 10.09.1993 did not indicate neither any discrepancy in the accounts produced nor any alleged suppression, the Sales Tax Officer and the Tribunal ought not to have proceeded on the basis of an alleged average per day sale as has been committed by the said authorities. It is submitted that as would be evident from the first appellate order, the first appellate authority took into account the quantum of purchase and sale during the aforesaid three years in question as mentioned therein and came to a finding that the sales turnover during 1993-94 comes to Rs. 1,81,952.76 paise which was below the exemption limit of Rs. 2,00,000/- and, consequently, held the petitioner not to be liable to pay any tax during the year 1993-94. 7. Mr. R.P. Kar, learned Standing Counsel for the Sales Tax Department, on the other hand, supported the orders passed by the Tribunal and submitted that the petitioner did not maintain any sale register or sale account but, issued sale memos on demand by customers and in the absence of any sale register or sale account, the Assessing Officer was left with no choice but to resort to best judgment assessment to assess the average daily sale and consequently arrived at the taxable turnover and levy of tax thereon. 8. 8. Having heard learned counsel for the respective parties and on perusing the orders annexed to the present revision petition, what is abundantly clear in the present case is that the averment made by the petitioner that he had purchased cement and other goods from local registered dealers and had paid tax thereon has never been in dispute by the Department. In other words, it is clear that the petitioner is a small trader who purchased "first point tax paid goods" on payment of tax and resold the same to purchasers in the local areas where he established his business. 9. Even though it may be a fact that the petitioner did not maintain any sale register or sale account but, the Tribunal found that the petitioner had kept accounts of his purchases in a register and has kept the purchase memos. The Tribunal further noted that the I.S.T. "glanced through his sale memo book" and found his daily average sale as per the same memos issued varied from Rs. 485 to Rs. 1526/-. It is this, which forms the basis of the assessment by the Assessing Officer that to his best judgment. It is estimated by him that the average sale by the petitioner was Rs. 400/- in 1991 and Rs. 800/- in 1993 and as a consequence of that, held the petitioner to be liable to pay tax with effect from 01.04.1993 i.e. for the assessment year 1993-94. 10. In the light of the circumstances that arise for our consideration in the present case, we are constrained to note how a small trader can be put to great difficulties. Such a trader has admittedly kept register of all the purchase memos through which he had made purchases of stock. The said purchase memos and computation thereof ought to have formed the basis of any calculation of turnover, if at all necessary. A mere assumption based on a visit on a particular date of inspection of the possible daily average sale cannot and ought not to form the foundation for resorting to best judgment assessment. We are of the considered view that in the present case, since the Inspector of Sales Tax did not give report indicating any discrepancy or suppression, consequently, in the absence of any findings by the Inspector regarding either discrepancy or suppression, resorting to best judgment assessment is wholly erroneous and without jurisdiction. 11. We are of the considered view that in the present case, since the Inspector of Sales Tax did not give report indicating any discrepancy or suppression, consequently, in the absence of any findings by the Inspector regarding either discrepancy or suppression, resorting to best judgment assessment is wholly erroneous and without jurisdiction. 11. We have also perused the first appellate order and we find that the first appellate authority appears to have approached the issue with great amount of clarity and necessary application of mind. Consequently, the present revision is allowed and we affirm the first appellate order dated 12.09.1995 passed in Sales Tax Appeal No. AA.238,239(S.A.I) 94-95 under Annexure-2 and quash the Second Appellate order dated 02.06.2004 passed in S.A. No. 2788 of 1995-96 under Annexure-3. Final Result : Allowed