1984 (3) TMI 361

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.... and soft drinks in their factory. Based on the survey, the authorities found that for one kg. of C02 Gas, 238.9 bottles of Limca or 322 bottles of Goldspot could be produced. On the basis of the said finding arrived at, it was found that the assessees had shown lesser outturn of Limca or Goldspot in the previous year 1980-81. Therefore, the assessing authority made a best judgment assessment by adding 5 per cent for probable omissions to the turnover returned by the assessees. In appeal, the Appellate Assistant Commissioner reduced the addition to 2 per cent which came to Rs. 43,426. Thereafter, the matter was taken on appeal to the Tribunal. Before the Tribunal, it was contended on behalf of the assessees that the sample survey conduct....

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..... According to the learned counsel, the outturn of bottles of aerated waters from one kg. of C02 Gas will vary depending upon the various circumstances such as actual wastage and the promptness with which the operations are carried on. In this case, the Tribunal has in fact found that there was no change in the nature of trade or the manufacturing process in the years 1980-81 and 1981-82 and there is no evidence to show that there was any change in the machinery or the method of manufacture. The Tribunal also found that the assessees were not in a position to place any fact or material regarding the changes in the climatic conditions and also in the set-up of persons in the factory during the two years. According to the Tribunal, unless the....

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....earned counsel has not been put before the Tribunal and there was no investigation on that aspect. Therefore, at this stage, we are not in a position to entertain a new contention which was not placed before the Tribunal and on which the Tribunal had no occasion to investigate and give its finding. The learned counsel then contends relying on the decision reported in Kalyani Oil Mills v. State of Madras [1973] 32 STC 542 that the sample survey conducted in one year and the findings based on that sample survey cannot be used for another year. The decision Kalyani Oil Mills [1973] 32 STC 542 was a case where a best judgment assessment was on the basis of electricity consumption. But there was no actual test check or comparable data from ot....