Best judgment assessment requires fair opportunity to produce seized records before ex parte taxation is made.

Best judgment assessment could not be made on an erroneous assumption that the assessee had withheld evidence when the seized account books were in the custody of the Central Excise authorities. The assessing authority was required to exercise its power to call for the relevant documents before completing the assessment, and a best judgment assessment had to be based on surrounding circumstances and all relevant material. Late return filing could attract penalty, but it did not justify denying the assessee an opportunity to produce evidence or proceeding ex parte. Fresh assessment was therefore required after the documents were summoned and considered.

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Issues: Whether a best judgment assessment could be sustained when the assessee's seized account books were unavailable to him and the assessing authority did not invoke its power to summon the relevant documents before completing the assessment.

Analysis: The assessment was founded on the assumption that the assessee had failed to furnish evidence in support of claimed exemptions. The record showed, however, that the relevant books and papers were in the custody of the Central Excise authorities, and the assessee could not produce them without assistance. Section 35(1)(a)(ii) of the Madhya Pradesh General Sales Tax Act, 1958 empowered the assessing authority to call for the necessary documents, and Rule 33(3) of the Madhya Pradesh General Sales Tax Rules, 1959 required a best judgment assessment to be made with due regard to surrounding circumstances and all other relevant matters. Late filing of returns might attract penalty under section 17(3), but it did not justify denying the assessee any opportunity to produce evidence or proceeding ex parte on an erroneous premise.

Conclusion: The best judgment assessment could not be sustained, and the assessee was entitled to a fresh assessment after the relevant documents were summoned and considered.

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