High Court Kerala High Court

M/S.Dana Gold vs State Of Kerala on 11 August, 2008

Kerala High Court
M/S.Dana Gold vs State Of Kerala on 11 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST.Rev..No. 451 of 2006()


1. M/S.DANA GOLD, PANDALAM,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA.
                       ...       Respondent

                For Petitioner  :SRI.ARIKKAT VIJAYAN MENON

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER

 Dated :11/08/2008

 O R D E R
                H.L.DATTU, C.J. & A.K.BASHEER, J.
               ------------------------------------------------------
                           S.T.Rev.No.451 of 2006
                   ---------------------------------------------
                 Dated, this the 11th day of August, 2008

                                   O R D E R

H.L.Dattu, C.J.

This tax revision case would arise out of an order

passed by the Sales Tax Appellate Tribunal in T.A.No.645 of 1995

dated 25-05-2006.

2. The revision petition pertains to the assessment year

1991-1992. This is the second round of litigation by the assessee. On

an earlier occasion, the assessee was before this Court in TRC No.305 of

2002, being aggrieved by the orders passed by the Appellate Tribunal

in T.A. No.645/95 and 117/96. This Court, by its order

dated 15th November, 2002, was pleased to dispose of the revision

petition and was further pleased to remand the matter to the Tribunal for

fresh disposal, in accordance with law.

3. The facts in brief are: The assessee is a partnership

firm. It is registered as a dealer under the Kerala General Sales Tax Act

(“the Act” for short). It is engaged in jewellery business at Pandalam.

The assessee has started its business only in the year 1990-1991.

S.T.Rev.No. 451/2006 -2-

4. The Intelligence Officer of the Department had visited

the business premises of the assessee on two occasions, namely, on

14-1-1992 and on 25-3-1992. On verification of the actual stock and

the books of accounts maintained, the Intelligence Officer on 14-1-1992

had come to the conclusion that there is variation in stock,

i.e. 5.590 grams out of 5366.610 grams.

5. On the second inspection made on 25-3-1992, the

Intelligence Officer was of the view, that, there was stock variation of

2.190 grams when the actual stock reflected in the books of account

maintained by the dealer was 5095.780 grams. In our opinion, this was

negligible stock variation especially in the context that the assessee has

commenced its business activity only in the previous year, namely,

1990-1991.

6. At the time of inspection, the stock in the business

premises should definitely tally with the quantum of stock reflected in

the stock registers maintained in the regular course of business. But, in

the present case, it is no doubt true that there was variation in the stock at

the time of two inspections. But that variation was negligible, when it is

seen in the context of the volume of business done by the dealer.

S.T.Rev.No. 451/2006 -3-

7. The assessing authority after rejecting the

annual returns filed by the assessee, based on the shop inspection report

received by him from the Intelligence Officer of the Department,

completed best judgment assessment and in that has made an addition of

5 times the average running stock.

8. In the appeal filed, the first appellate authority has

modified the orders of assessment passed by the assessing authority by

adding two times of the average running stock.

9. Being aggrieved by the orders passed by the

first appellate authority, the assessee as well as the Revenue had carried

the matter in appeal before the Tribunal in T.A.Nos.645 of 1995 and

117 of 1996. The Tribunal by its order dated 29th June, 2002 had

rejected the appeals filed both by the assessee as well as by the State and

thereby has confirmed the orders passed by the first appellate authority.

The said order passed by the Tribunal had been questioned by the

assessee before this Court in TRC No.305/2002. This Court by its order

dated 15th November, 2002 was pleased to allow the revision case and

was pleased to remand the matter to the Tribunal for fresh disposal in

accordance with law and in the light of the observations made in the

S.T.Rev.No. 451/2006 -4-

course of the order.

10. After such remand, the Tribunal has passed yet another

order dated 25th May, 2006 and in that has confirmed the orders passed

by the first appellate authority. It is the correctness or otherwise of this

order that is called in question by the assessee before us in this tax

revision case. The assessee has framed the following questions of law for

our consideration and consequent 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

confirming the rejection of books of accounts and

estimation of turnover?

B. Whether on the facts and in the circumstances of the

case is not the turnover sustained by the Appellate

Tribunal at 100% of the reported turnover excessive,

arbitrary and having no nexus with the defects pointed

out?”

11. Before we advert to the legal issues raised by the

assessee, we want to make two things clear. Firstly, if the findings of the

Tribunal is perverse finding, that also would be a question of law

which can be considered by this Court in a revision petition filed under

S.T.Rev.No. 451/2006 -5-

Section 41 of the Act. Secondly, the Tribunal in the hierarchy of the

authorities under the Act is the last fact finding authority and it can also

decide the questions of law.

12. The assessee had commenced its business in the fag

end of the year 1990-1991. The present revision petition relates to

assessment year 1991-1992. There were two inspections conducted by

the Intelligence Officer of the Department. On both occasions, there was

a stock variation, but that in our view was negligible when compared to

the volume of business of the dealer. The reasons for stock variation

was explained by the assessee. Having gone through the explanation

offered by the assessee, we are of the opinion that the explanation ought

to have been accepted by the Tribunal and should have modified the

orders passed by the assessing authority as well as by the appellate

authority.

13. The best judgment assessment can be based on certain

facts when it is found that the accounts of the dealer cannot be accepted.

In the instant case, it is related to the suppression found at the time of

shop inspection made twice by the intelligence wing of the Department

and on both occasions, the suppression noticed is nearly 8 grams out of

S.T.Rev.No. 451/2006 -6-

10,500 grams of gold. This stock variations was properly explained by

the assessee, but the same is not accepted by the assessing authority and

the Appellate Tribunal. The approach of the Tribunal is neither

reasonable nor justifiable. To put it in a nutshell, the approach appears

to be hyper technical. In that view of the matter, it is difficult for us to

sustain any one of the orders passed by the authorities under the Act as

well as by the Tribunal. Therefore, while allowing this revision case, we

delete the additions made by the authorities under the Act as well as by

the Tribunal.

Ordered accordingly.

(H.L.DATTU)
CHIEF JUSTICE

(A.K.BASHEER)
JUDGE

MS/dk