High Court Kerala High Court

State Of Kerala vs M/S. Chettupuzha Mathew & Sons on 27 August, 2008

Kerala High Court
State Of Kerala vs M/S. Chettupuzha Mathew & Sons on 27 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ST.Rev..No. 43 of 2003()


1. STATE OF KERALA, REP. BY
                      ...  Petitioner

                        Vs



1. M/S. CHETTUPUZHA MATHEW & SONS,
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.K.I.SAGEER

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

 Dated :27/08/2008

 O R D E R
                H.L.DATTU, C.J. & A.K.BASHEER, J.
              - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                            S.T.Rev.No.43 OF 2003
              - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                   Dated this the 27th day of August 2008

                                       ORDER

H.L.DATTU, C.J.

The Revenue calls in question the correctness or otherwise of the

orders passed by the Agricultural Income Tax and Sales Tax Appellate

Tribunal, Additional Bench, Palakkad in T.A.144/94 and 183/94 dated

28th May, 2001. The Revenue has framed the following questions of law

for our consideration and decision. They are as under:

“When book of accounts and return are rejected

by the assessing authority and estimated addition

made on materials is it justified from the part of the

appellate authorities to interfere with the estimation of

addition made on running stock method in the light of

grave irregularities variation and compounding

committed by the assessee.

Is not the finding of the appellate tribunal

reducing the estimation to 5 percentage of the turnover

returned unfair, arbitrary and improportionate to the

variation detected.”

S.T.Rev.No.43 OF 2003
:: 2 ::

2. The facts in brief are: The assessee/respondent herein is doing business

in jewellery. The assessment year in question is 1991-1992. The business

premises of the assessee was inspected by the Intelligence Officer of the

Department on 20-2-1992. After physical verification of the stock found at the

time of inspection, the inspecting authority had noticed that there was 6.5 gms of

new ornaments in excess than what was reflected in the stock registers and further

there was a shortage of 21.8 gms of gold than what was reflected in the books of

accounts. It is pertinent to notice here that the total quantity of gold sold by the

assessee during that year was 6350 gms.

3. When it was pointed out to the assessee about the excess and shortage of

old and new gold jewellery, the assessee had compounded the offence

departmentally and in lieu of the prosecution proceedings.

4. The assessee had filed its annual returns before the assessing authority

for the assessment year 1991-1992 and in that had conceded a total and taxable

turn over of Rs.27,88,974.70.

5. The assessing authority, after verification of the books of accounts and in

view of the shop inspection report dated 20-2-1992, had rejected the books of

accounts and the returns filed by the assessee and thereafter had proceeded to

complete the best judgment assessment and has estimated the sales at 4 times the

running stock.

S.T.Rev.No.43 OF 2003
:: 3 ::

6. Aggrieved by the quantification so made by the assessing authority, the

assessee had filed the first appeal before the First Appellate Authority in

S.T.A.450/93.

7. The First Appellate Authority, by its order dated 27-12-93, has modified

the quantification of the tax liability of the assessee by reducing it to 25% of the

conceded turn over by the assessee.

8. The assessee and the Revenue, aggrieved by the orders passed by the

First Appellate Authority had carried the matter by way of second appeal before

the Tribunal in T.A.144/94 and 183/94 respectively. The Tribunal, in the appeal

filed by the assessee, has further reduced the addition made by the assessing

authority to 5% of the conceded turn over and consequently rejected the appeal

filed by the State in T.A.183/94. The correctness or otherwise of the orders passed

by the Tribunal is the subject matter of this revision petition.

9. First and foremost, the orders passed by the authorities under the Act and

the Tribunal is purely based on the facts. No question of law as such would arise

for our consideration. The revision petition can be entertained by this court only

on two grounds. Firstly, if the Tribunal has failed to decide the question of law or

has erroneously decided the question of law. At this stage, we also intend to add,

if the finding of fact arrived at by the Tribunal which is the last fact finding

authority is a perverse one, then also it will be a question of law which can be

S.T.Rev.No.43 OF 2003
:: 4 ::

looked into by this court in exercise of its power under Section 41 of the Act.

10. The facts which have narrated would clearly demonstrate that the

estimation has been made by the assessing authority while quantifying the liability

for the assessment year 1991-1992 on the basis of the best judgment assessment.

11. The First Appellate Authority and the Tribunal has scaled down the

additions made by the assessing authority. All these has been done purely based

on the facts pleaded by the assessee and countered by the Sale Tax representatives.

In our opinion, no question of law as such would arise for our consideration and

decision. Therefore, while affirming the finding of the Tribunal, we reject this

revision petition.

12. Consequently, I.A.No.54 of 2008 stands dismissed.

Ordered accordingly.

(H.L.DATTU)
CHIEF JUSTICE

(A.K.BASHEER)
JUDGE
jes