IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 S.T.Rev.No.226 of 2008 --------------------------------------- [AGAINST THE ORDER DATED 28.12.2007 IN T.A.NO.63/2007 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOTTAYAM] (ASSESSMENT YEAR 2002-2003) .................... REVISIOIN PETITIONER/APPELLANT/ASSESSEE: - --------------------------------------------------------------------------- T.M.SHAJI, AISHA RUBBERS, KANJIRAPPALLY. BY ADV. SRI.T.M.ABDUL LATIFF. RESPONDENT/RESPONDENT/REVENUE:- -------------------------------------------------------------- THE STATE OF KERALA. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 19/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. -------------------------------------------- S.T.Rev.No.226 of 2008 -------------------------------------------- Dated, this the 19th day of August, 2008 ORDER H.L.Dattu,C.J. This revision petition is filed by an assessee, registered both under the provisions of the Kerala General Sales Tax Act, 1963 (“KGST Act” for short) and Central Sales Tax Act, 1956 (“CST Act” for short), being aggrieved by the orders passed by the Kerala Sales Tax Appellate Tribunal, Additional Bench, Kottayam in T.A.No.63 of 2007 dated 28th December, 2007. 2. The assessee is a dealer in raw rubber. In this revision petition, we are concerned with the assessment year 2002-03. 3. The Intelligence Officer of the Sales Tax Department had inspected the business premises of the petitioner. Apart from other omissions, the Intelligence Officer had noticed that the assessee had not filed its annual returns for the assessment year 2002-03 and, secondly, had failed to prove that he was not the last purchaser of the rubber sheet purchased and covered with the Form 25 declaration. The Intelligence Officer has also levied the penalty under Section 45A of the KGST Act. 4. The assessing authority, based on the shop inspection report, and since the assessee did not co-operate with the assessing S.T.Rev.226 of 2008 - 2 - authority by producing the books of accounts maintained in the regular course of business inspite of service of notice, has proceeded to pass an ex parte assessment order and, in that, had made certain additions towards actual suppression plus the probable suppressions, both in purchase and sales turnover to the conceded total and taxable turnover in the monthly returns. 5. The assessee being aggrieved by the assessment orders passed by the assessing authority had carried the matter in appeal before the first appellate authority. 6. The first appellate authority by his order dated 3.3.2007 has modified the assessment order passed by the assessing authority and in that has directed the assessing authority to give exemption to the turnover covered by valid Form 25 declarations. The operative portion of the order reads as under:- “In the result the assessment must be modified by adding the suppression detected by the Intelligence Officer to the conceded turnover and giving exemption to those turnover covered by valid form 25 declarations”. 7. Not being satisfied with the orders so passed by the first appellate authority, the assessee had carried the matter by way of second appeal before the Tribunal in T.A.No.63 of 2007. 8. Before the Tribunal, the assessee's representative had S.T.Rev.226 of 2008 - 3 - argued the following legal issue. The same is as under: “On behalf of the appellant it is argued that the appellant has filed revised return showing the correct turnover and as per the revised return there is no suppressed turnover. The appellant is eligible for filing the revised return before the completion of the assessment. As the appellant has filed revised return voluntarily it is to be presumed that there is no intention to evade tax. The addition sustained by the first appellate authority is unsustainable”. (underlining by us) 9. The Tribunal, keeping in view, that, at no point of time the assessee had filed its annual return for the assessment year 2002-03, has proceeded to reject the submissions made by the representative of the assessee on the ground that the revised return could be filed by the assessee within six months from the date of filing of the annual returns. To come to that conclusion, the Tribunal has relied on Rule 18(2A) of the KGST Rules. 10. Sri.T.M.Abdul Latiff, learned counsel appearing for the petitioner, as usual, vehemently contends before this Court, that, the assessee had filed its annual return before the assessing authority even before the date of inspection and, therefore, was entitled to file revised returns within the time stipulated in sub-rule (2A) of Rule 18 of the KGST Rules. S.T.Rev.226 of 2008 - 4 - 11. In order to resolve the controversy that is canvassed by the learned counsel for the assessee, in our opinion, sub-rule (2A) of Rule 18 of KGST Rules requires to be noticed. It is as under: “(2A) Any dealer who subsequently finds that any mistake has crept in the return filed under sub-rule (1), may file a revised return in Form No.9, within six months from the date fixed for filing return under sub-rule (1) or along with the certificate of audit and statement required to be filed under sub-rule (14B) of rule 32, as the case may be”. 11. Rule 18 of the KGST Rules speaks of filing of annual returns by a dealer liable to tax under the Act, irrespective of the quantum of his total turnover on or before the first day of May in every year, showing the total turnover and taxable turnover for the preceding year, the amounts by way of tax or taxes due on the taxable turnover during the year. Sub-rule (2A) provides for filing of the revised annual returns under specified circumstances. They are, if for any reason, the assessee after filing the annual returns in Form No.9, subsequently finds that some mistake has crept in the annual returns filed, may file a revised return within six months from the date fixed for filing return under Rule 18(1) of the Rules, i.e. on or before the 1st day of May of the assessment year. Apart from this, the assessee, if for any reason could not produce the certificate issue by the Auditors/Chartered Accountants, the revised returns is permitted to be filed enclosing the certificate within six months S.T.Rev.226 of 2008 - 5 - from the date of filing the original returns. 13. In the instant case, it is the concurrent findings of fact by the authorities under the KGST Act, that, at no point of time the assessee has filed its annual return before the assessing authority. The assessee has filed revised returns only on 16.1.2007, that too after shop inspection was conducted by the Department. The revised return so filed cannot be said as a return filed as envisaged under the Act and also as permitted under sub-rule (2A) of Rule 18 of the KGST Rules. Keeping all these aspects of the matter in view, the Tribunal, in our opinion, has rightly rejected the second appeal filed by the assessee. 14. The parameters of the revisional jurisdiction of this Court is that this Court can entertain a revision petition, provided the Tribunal has failed to decide or has erroneously decided any question of law. Further, if there is a perverse finding by the Tribunal on facts, that also would be a question of law that can be agitated and argued before this Court. 15. Further, this Court, time and again, has observed that the assessee cannot plead what was not urged and argued before the Appellate Tribunal. The law on the point is very clear and we need not have to burden this judgment by citing all those decisions. S.T.Rev.226 of 2008 - 6 - 16. As we have already noticed, the one and only submission that was urged and argued by the representative of the assessee before the Tribunal was that the assessee can file a revised return at any time before the completion of the assessment. That submission, in our view, was rightly rejected by the Tribunal, in view of sub-rule (2A) of Rule 18 of the KGST Rules. 17. In the above view of the matter, we do not find any legal issue for us to entertain this revision petition. Accordingly, without reference to the respondent, the revision petition requires to be rejected and it is rejected. 18. In view of the orders passed in the revision petition, the reliefs sought in I.A.Nos.1770 of 2008 and 1891 of 2008 need not be considered by this Court. Accordingly, the said interlocutory applications are also rejected. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer Judge vku/dk.