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C.U.Devassy vs State Of Kerala on 10 December, 2007

Kerala High Court
C.U.Devassy vs State Of Kerala on 10 December, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST Rev No. 113 of 2007()


1. C.U.DEVASSY,CHOONDAKKATTIL TRADERS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA.
                       ...       Respondent

                For Petitioner  :SRI.ARIKKAT VIJAYAN MENON

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH

 Dated :10/12/2007

 O R D E R
                        H.L. DATTU, CJ. & K.M. JOSEPH, J.
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                               S.T.Rev. No.113 of 2007
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                     Dated this the 10th day of December, 2007.

                                             ORDER

H.L.DATTU, CJ,

This revision petition is filed by a dealer registered under the

provisions of the Kerala General Sales Act (‘KGST Act’ for short), being aggrieved

by the orders passed by the Sales Tax Appellate Tribunal in T.A. 402 of 2005

dated 17.5.2006.

2. The facts in brief are:-

The petitioner is a dealer registered under the

KGST Act. It is engaged in the trading of grocery etc., in Pudukkad in Thrissur

District. For the assessment year 2001-2002, the assessee had filed his annual

return and in that had conceded certain total and taxable turnovers.

3. The assessing authority being of the opinion that the return so

filed by the assessee is incorrect and incomplete has proceeded to issue the pre-

assessment notice. In the notice, it was brought to the notice of the assessee that

the petitioner has suppressed the inter-State purchase of Gingily oil. Based on the

aforesaid omission, the assessing authority had issued pre-assessment notice to

the petitioner, inter alia directing the petitioner to show cause why the proposal

made in the pre-assessment notice should not be confirmed.

4. After the receipt of the pre-assessment notice, petitioner had filed

his detailed reply, in which, he had denied the assertions and accusations made by

the assessing authority in the pre-assessment notice issued.

S.T.Rev.113/2007.

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5. The assessing authority, not being satisfied with the

explanation so offered by the assessee, has proceeded to confirm the proposal

made by him and thereby has completed the assessment for the assessment

year 2001-2002. In that it has made an addition of Rs. Two Lakhs to the

conceded turnover. In the assessment order, the assessing authority has

specifically stated that the assessee has suppressed the purchases of gingily oil

made by way of inter-State purchase. This finding of the assessing authority

is based on the materials available on the record.

6. Aggrieved by the orders of assessment passed by the

assessing authority, the assessee has filed first appeal before the appellate

authority. In the appeal, the appellate authority has confirmed the view of the

assessing authority.

7. Aggrieved by these two orders, the assessee had preferred

appeal before the Sales Tax Appellate Tribunal in T.A. No.402 of 2005. The

Tribunal, by its order dated 17th May, 2006, while confirming the order of the

assessing authority, has reduced the addition made by the assessing authority

from Rs.Two Lakhs to Rs. One Lakh, and accordingly has directed the

assessing authority to re-compute the tax liability and issue a fresh demand

notice. The findings and the conclusion reached by the Tribunal is as under:-

“I have examined the contentions of

both parties with respect to the arguments putforth.

Considering the nature of defects pointed out by the

assessing authority the rejection of accounts is

justified. The assessing authority had established

S.T.Rev.113/2007.

3

purchase suppression in gingily oil purchased from

outside the State. Considering the materials on

record the addition proposed by the assessing

authority is found to be in excess. To meet the ends

of justice the addition of Rs.2,00,000.00 is reduced to

Rs.1,00,000.00. All other additions are sustained.

The assessing authority is directed to modify the

assessment order as stated supra. Ordered

accordingly.”.

8. Aggrieved by the order passed by the Tribunal, the assessee

is before us in this Tax Revision.

9. The assessee has framed the following questions of law for

our consideration and decision. They are as under:

“A. Whether on the facts and in the circumstances of

the case, has not the Appellate Tribunal gone

wrong in failing to consider Annexure F purchase

ledger wherein all the purchases referred to in the

assessment order are accounted?

B. Is not the estimation of turnover sustained by the

tribunal illegal and arbitrary?”

10. Smt. Meera V. Menon, learned counsel appearing for the

assessee would submit that the assessing authority was not justified in coming

to the conclusion that the assessee has in fact suppressed the Gingily oil

purchased from outside the State and therefore submits that the assessing

authority was not justified in rejecting the return filed by the assessee and then

completing the best judgment assessment by making additions to the conceded

S.T.Rev.113/2007.

4

turnover.

11. We have carefully perused the order of assessment passed

by the assessing authority. In the assessment order so passed, the assessing

authority has stated that though the assessee has purchased Gingily oil from

outside the State, has not made available the details of purchase and sale and

therefore there is suppression of purchase and sale of Gingily oil. Having

come to that conclusion, the assessing authority has made an addition of

Rs.Two Lakhs to the conceded turnover.

12. The finding of the assessing authority is purely based on the

books of accounts and other documents produced by the assessee at the time

of completion of the assessment proceedings.

13. The Tribunal, once again relying upon the findings of the

assessing authority, which is a finding of fact, has come to the conclusion that

the assessing authority has not committed any error while completing the best

judgment assessment. However, being of the opinion that the assessing

authority was not fully justified in making an addition of Rs.Two Lakhs to the

conceded turnover, and in the ends of justice, has reduced the same to Rs.One

Lakh. The finding of the Tribunal is purely a finding on fact and the same

cannot be interfered by this court under Section 41 of the KGST Act, for the

reason, that the parameters of the revisional jurisdiction of this court is limited.

This court in exercise of the powers under Section 41 of the KGST Act, can

entertain a revision petition if the Tribunal has failed to decide or has

erroneously decided a question of law. In this case, we have already noticed

S.T.Rev.113/2007.

5

that the finding of the Tribunal is purely based on facts and therefore this

revision filed under Section 41 of the Act cannot be entertained by us.

Accordingly, while rejecting the revision, we confirm the order passed by the

Tribunal.

Ordered accordingly.

H.L. DATTU,
CHIEF JUSTICE

K.M. JOSEPH,
JUDGE

sb.

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