IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST.Rev..No. 123 of 2007()
1. BINI AGENCIES,
... Petitioner
Vs
1. STATE OF KERALA - REPRESENTED BY
... Respondent
For Petitioner :SRI.N.D.PREMACHANDRAN
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :01/12/2008
O R D E R
H.L.Dattu,C.J. & A.K.Basheer,J.
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S.T.Rev.No.123 of 2007
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Dated, this the 1st December, 2008
ORDER
H.L.Dattu,C.J.
A dealer, registered under the provisions of the Kerala
General Sales Act, 1963 (“Act” for short) and doing abkari business, is
before us in this Sales Tax Revision, being aggrieved by the orders passed
by the Sales Tax Appellate Tribunal, Additional Bench, Palakkad, in
T.A.No.252 of 2005 dated 20th March, 2006.
(2) The relevant assessment year is 2001-02.
(3) The assessee had filed its annual returns before the
assessing authority, conceding a particular total and taxable turnover.
(4) The business premises of the assessee had been
inspected by the Intelligence Wing of the Department. After conducting
the inspection, the Intelligence Wing of the Department had noticed, that,
there is not only excess stock, but also shortage in stocks.
(5) The assessee had compounded the offence
departmentally in lieu of prosecution proceedings.
(6) The information so collected by the Intelligence Wing
of the Department had been passed on to the assessing authority.
(7) The assessing authority, in view of the information
received by him from the Intelligence Wing of the Department, has
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thought it fit to reject the books of accounts and also the returns filed by
the assessee and, thereafter, has proceeded to complete the best judgment
assessment and, in that, had made certain additions towards the probable
omissions and suppressions.
(8) The orders so passed by the assessing authority has been
modified by the first appellate authority and also by the Tribunal.
(9) The assessee, in this revision petition, calls in question
the correctness or otherwise of the orders passed by the Tribunal.
(10) The assessee has framed the following questions of
law for our consideration and decision. They are as under:
“a. Whether on the facts and circumstances of the
case the Tribunal was justified in sustaining =% addition in
respect of the sale of liquor purchased from Beverages
Corporation and treating such additions as taxable.
b. Whether on the facts and circumstances of the
case taking into consideration the trivial and negligible stock
variation in respect of the liquor, soda, soft drinks and cooked
food the Tribunal is justified in again sustaining the
percentage addition after having found that there is no nexus
with the suppression and the addition”.
(11) This is a case of best judgment assessment. The best
judgment assessment is passed relying upon the information furnished by
the Intelligence Wing of the Department. It is an admitted position, that,
the assessee has compounded the offence departmentally, in lieu of
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prosecution proceedings. That only means, that, the assessee had accepted
the version of the Intelligence Wing of the Department, who had stated in
the mahazar drawn by him, that, there is shortage and also excess stock of
the liquor in the business premises of the assessee. In view of this
information, in our opinion, the assessing authority was justified in
rejecting the books of accounts and also in completing the best judgment
assessment. The first appellate authority and also the Tribunal, being of
the opinion, that, the additions made by the assessing authority is
excessive, have reduced the additions made by the assessing authority
towards the probable omission and suppression.
(12) The findings and conclusions reached by the Tribunal
is purely based on the appreciation of facts. It does not involve any
question of law for our consideration and decision, under Section 41 of
the Act.
(13) Since, in our opinion, no question of law as such is
involved in the decision made by the Tribunal, we cannot entertain a
petition filed under Section 41 of the Act, for the sole reason, that, the
parameters of Section 41 of the Act is now explained by this Court in
several decisions, wherein it is said, that, this Court, in exercise of its
powers under Section 41 of the Act, can entertain a revision petition,
provided, the Tribunal has failed to decide a question of law or has
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decided a question of law erroneously or if there is a perverse finding.
(14) In the above view of the matter, we do not see any
reason to entertain this revision petition. Therefore, the revision petition
requires to be rejected and it is rejected.
Ordered accordingly.
H.L.Dattu
Chief Justice
A.K.Basheer
Judge
vku/-