IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 ST.Rev..No. 71 of 2011() ------------------------ AGAINST ORDER DATED 31/01/2011 IN TA.311/2009 of AGRL.I.T.ADL.BENCH,ERNAKULAM .................... REVISION PETITIONER/RESPONDENT/REVENUE: ----------------------------------------------------------- STATE OF KERALA REPRESENTED BY DEPUTY COMMISSIONER(LAW), COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER, MR.MOHAMMED RAFIQ RESPONDENT(S): APPELLANT/ASSESSEE: ---------------------------------- V.U.SIDHIQUE, PROPRIETOR, V.S.EXPORTS & IMPORTS, PERUMATTOM, PUTHUPPADY P.O., MUVATTUPUZHA, PIN - 686 673. ADV. SRI.T.M.SREEDHARAN, SENIOR ADVOCATE FOR R1 SMT.NISHA JOHN FOR R1 SRI.V.P.NARAYANAN FOR R THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 28/09/2011, ALONG WITH S.T.REV. NOS. 72, 73, 74 & 75 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.T.REV.NO.71/2011 APPENDIX PETITIONER'S EXHIBITS ANNEXURE-A : COPY OF ASSESSMENT ORDER DATED 15/01/2009 ANNEXURE-B : COPY OF ORDER DATED 31/01/2011 IN T.A.NO.311/2009. //TRUE COPY// PA TO JUDGE. C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... S.T.Revision Nos.71, 72, 73, 74 & 75 of 2011 .................................................................... Dated this the 28th day of September, 2011. J U D G M E N T Ramachandran Nair, J. The common question raised in all the revision cases filed by the State against different assessees in the same group is whether the Tribunal was justified in upholding assessee's claim for payment of tax at concessional rate based on declaration issued by buyers without being satisfied that the buyers and their transactions are bonafide or proved. Learned Government Pleader has produced judgment in connected matters issued by this Court in S.T.Rev.Nos.214, 228, 230 & 254 of 2009 dated 07/10/2010, wherein we held that ratio of Bharath Refineries Ltd.'s case applies in the case of bonafide and genuine transactions and not to bogus sales accounted by assessees based on declarations produced from registered dealers who have not really purchased the goods. 2. Learned Senior counsel Shri.T.M.Sreedharan appearing for the respondent assessees submitted that liability was in fact settled under the Amnesty Scheme prior to S.T.Revision Nos.71, 72, 73, 74 & 75/2011 2 the Tribunal's order. If liability is settled under the Amnesty Scheme prior to the Tribunal's order, then the respondent assessees should not have pressed the appeals before the Tribunal. Only on account of the respondent assessees getting favourable orders the State had to come to this Court with the revisions. Since settlement under the Amnesty scheme is subject to modification by orders of the Tribunal, the State is justified in filing the revision cases. 3. The fact remains that the respondent assessees have not proved that the sales were in fact made to the very same purchasers who issued Form-18 declarations covering the transactions. We have in the above referred judgment, taken the view that Form-18 produced by sellers entitle them for assessment at concessional rate only if sales are proved to be genuine and correct. When the Department's case is that the respondent assessees have not sold goods to the persons who have issued Form-18 because the buyers were not even traceable, it is for the assessees to prove that sales were in fact made to the persons who issued Form 18. Learned Senior counsel for the assessees submitted that when buyers are S.T.Revision Nos.71, 72, 73, 74 & 75/2011 3 registered under the Act the Department cannot easily raise the contention that the buyers are bogus. After hearing both sides, we feel the matter should be remanded back to the Tribunal following the judgment above referred for further enquiry and for the Tribunal to verify the assessment records of the buyers who have issued declaration in Form-18 to verify whether they have accounted purchases, paid tax on the products sold. The S.T.Revision cases are accordingly allowed by vacating the orders of the Tribunal and by remanding the matter to the Tribunal to reconsider the matter in the light of the judgment above referred and observations herein. The remand will apply to S.T.Revision No.75/2011, wherein also we direct the Tribunal to consider and decide the matter by themselves instead of remanding the matter to the Assessing Officer. These S.T.Revision cases are allowed as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg