P. Krishna Rao Vs. State of Mysore

- code of civil procedure, 1908. order 18, rule 4(1) r/w section 151: [v.g. sabhahit, j] application under marking of xerox copy of agreement of sale rejection of earlier application filed under section 61(2) and 65(c) of evidence act and order 18 rule 14(1) r/w section 151 c.p.c., subsequent application for the same relief no ground made out about the change of circumstance order of the trial court rejecting application held, it is not disputed that earlier two i.as were filed seeking the same prayer and there is no ground made out about the change of circumstance. the order of the trial court is justified. however, it is open to the writ petitioner / plaintiff to contend regarding the finding given by the trial court about the right of the plaintiff to lead secondary evidence in appeal in case the suit is decided against him. - they were made on the basis of 'best judgment',the commercial tax officer having rejected the accounts produced by the assessee. in making the 'best judgment' assessment the commercial tax officer adopted the five times of the working expenses formula. it was its duty to go into the facts of the case afresh and decide for itself whether there was justification for rejecting the accounts produced by the assessee, and if the accounts are to be rejected, what is the method by which it could assess the assessee on the basis of 'best judgment'.in this case those aspects were more particularly necessary as the deputy commissioner had opined that the formula adopted by the commercial tax officer was inapplicable so far as the assessment of the assessee for the assessment years 1958-59 and 1959-60 are concerned......taken up in appeal to the deputy commissioner of commercial taxes, he held that the formula in question is inapplicable for the assessment years 1958-59 and 1959-60, but he adopted that formula for the assessment year 1960-61. no reason was given by him as to why he adopted that formula for the year 1960-61 though he himself had rejected that formula as being inapplicable to the facts of the case for the assessment years 1958-59 and 1959-60. the learned deputy commissioner does not appear to have examined the case afresh. he has merely blessed the conclusions reached by the commercial tax officer. curious still is, when the matter was taken in appeal to the mysore sales tax appellate tribunal, the only observation made by the tribunal in this connection is 'regarding the appeal for 1960-61 we are of the opinion that no change or modification is needed'. obviously, the appellate tribunal forgot the fact that it was the final fact-finding tribunal; it was its duty to go into the facts of the case afresh and decide for itself whether there was justification for rejecting the accounts produced by the assessee, and if the accounts are to be rejected, what is the method by which it could assess the assessee on the basis of 'best judgment'. in this case those aspects were more particularly necessary as the deputy commissioner had opined that the formula adopted by the commercial tax officer was inapplicable so far as the assessment of the assessee for the assessment years 1958-59 and 1959-60 are concerned. we are constrained to observe that the order of the tribunal and that of the deputy commissioner are highly unsatisfactory. 3. for the reasons mentioned above, this petition is allowed, the order of the tribunal is set aside and the case is remitted back to the tribunal for disposing according to law. no costs. 4. petition allowed.