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. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.T.Rev. No.113 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2007. ORDER
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
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.
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
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
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
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
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
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