IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST.Rev..No. 339 of 2004()
1. STATE OF KERALA,
... Petitioner
Vs
1. M/S. G.S.JAIN AND ASSOCIATES (P) LTD.,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :M/S G.S.JAIN & ASSOC,KADAVANTHRA(PARTY)
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :07/11/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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S.T.Rev.Nos.339 & 367 OF 2004
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Dated this the 7th day of November, 2008
O R D E R
H.L.DATTU, C.J.
Since the assessee is common, the facts are identical and the
legal issues framed for our consideration and decision are common,
these revision petitioners are clubbed, heard and disposed of by this
common order.
(2) The assessee is a works contractor. For the assessment
years 1990-91 and 1991-92, the assessee had not filed either of its
monthly or annual returns but, had only filed a statement showing the
contract amount received.
(3) The assessing authority had directed the assessee to produce
the books of account for verification. In spite of service of notice, the
assessee did not produce the books of accounts maintained by it in its
regular course of business before the assessing authority.
(4) The assessing authority had issued a pre-assessment notice
and in that, had made a proposal to make an addition of equal
amount to the conceded turn over in the statement showing the
contract amount received.
(5) The assessee had filed its reply to the proposal made in the
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ST.Rev.Nos.339&367/04
pre-assessment notice. Along with the reply, the assessee had also filed its
annual return for both the assessment years. It had also filed an application
under Section 7(7) of the Kerala General Sales Tax Act (the “Act” for short)
inter alia requesting the assessing authority to permit the assessee to pay
the tax at the compounded rate. The assessing authority, after rejecting the
application filed by the assessee to grant the benefit of the payment of tax at
the compounded rate, has proceeded to complete the best judgment assessment
by making an addition of equal amount to the actual conceded turn over in the
statement showing the contract amount received.
(6) The order passed by the assessing authority was called in question
by the assessee before the first appellate authority. The first appellate
authority has confirmed the order passed by the assessing authority.
(7) The assessee had carried the matter by way of second appeal before
the tribunal in T.A.Nos. 821/1998 and 822/1998 and the tribunal, by its order
dated 17th December, 2001, while allowing the assessee’s appeal, had directed
the assessing authority to delete the additions made by the assessing authority
to the conceded turn over.
(8) While doing so, the tribunal in its order has observed as under:-
“The alternate contention of the assessee is that the
estimation of the turnovers as done by the assessing
authority has no basis. Of course we find some force in
the contention of the assessee in this regard. As contented
by the assessee the assessing authority has not pointed out3
ST.Rev.Nos.339&367/04any case of suppression or omission. As could be seen from
the assessment order for the year 1990-91, the assessing
authority on enquiry came to know that the contract
receipt for the assessment year 1990-91 was Rs.3,93,970/-“.
(9) The Revenue, being aggrieved by the order so passed by the tribunal,
is before us in these revision petitions.
(10) The Revenue has framed the following question of law for our
consideration and decision. It is as under:
“Whether on the facts and in the circumstances of the
case is the Tribunal justified in directing the Assessing
Authority to accept the return and complete the assessment
without insisting the book of accounts which were not been
produced for which no valid explanation was offered.”
(11) The respondent, though was served, has remained absent.
(12) Sri. Mohammed Rafiq, the learned counsel appearing for the
Revenue, would contend that the tribunal was not justified in deleting the
additions made by the assessing authority towards probable omissions and
suppressions to the conceded turnover. Therefore, submits that the order
passed by the tribunal requires to be set aside by this Court.
(13) We have carefully perused the order passed by the tribunal. The
tribunal, in the course of its order, has observed that at the time of
quantification of the tax liability, the assessing authority had enquired the
assessee with regard to the contract amount received for the assessment
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years in question. Apart from this, no other enquiry was made by the assessing
authority and in fact had not doubted the correctness or otherwise of the statement
made by the assessee. In view of this, the tribunal being of the opinion that since
there was no material before the assessing authority to arrive at a conclusion
that there was any suppression, there was no justification for the assessing
authority to have made any further addition to the conceded turn over.
(14) The order passed by the tribunal is purely based on the facts. The
tribunal has not decided any question of law or has failed to decide any
question of law. Since the reason stated by the tribunal in our opinion is not a
perverse finding, it is not proper for this court to exercise its powers under
Section 41 of the Act to interfere with the impugned order of the tribunal.
(15) In that view of the matter, while concurring with the view
expressed by the tribunal, we reject the revision petitions filed by the Revenue.
Ordered accordingly.
(H.L.DATTU)
CHIEF JUSTICE
(A.K.BASHEER)
JUDGE
cl/dk