IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 ST.Rev..No. 339 of 2004 ------------------------------- TA.821/1998 of S.T.A.T., ADDL.BENCH,ERNAKULAM .................... REVISION PETITIONER/RESPONDENT/REVENUE: ------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE DEPUTY COMMISSIONER (LAW), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. BY SR.GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. RESPONDENT /APPELLANT/ASSESSEE: --------------------------------------------------------- M/S. G.S.JAIN AND ASSOCIATES (P) LTD., CONTRACT WORKS, A-66, GANDHI NAGAR, PLOT NO.4, G.C.D.A., KADAVANTHARA. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 07/11/2008, ALONG WITH ST.RV.NO.367/2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.T.Rev.Nos.339 & 367 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of November, 2008 O R D E R H.L.DATTU, C.J. Since the assessee is common, the facts are identical and the legal issues framed for our consideration and decision are common, these revision petitioners are clubbed, heard and disposed of by this common order. (2) The assessee is a works contractor. For the assessment years 1990-91 and 1991-92, the assessee had not filed either of its monthly or annual returns but, had only filed a statement showing the contract amount received. (3) The assessing authority had directed the assessee to produce the books of account for verification. In spite of service of notice, the assessee did not produce the books of accounts maintained by it in its regular course of business before the assessing authority. (4) The assessing authority had issued a pre-assessment notice and in that, had made a proposal to make an addition of equal amount to the conceded turn over in the statement showing the contract amount received. (5) The assessee had filed its reply to the proposal made in the 2 ST.Rev.Nos.339&367/04 pre-assessment notice. Along with the reply, the assessee had also filed its annual return for both the assessment years. It had also filed an application under Section 7(7) of the Kerala General Sales Tax Act (the “Act” for short) inter alia requesting the assessing authority to permit the assessee to pay the tax at the compounded rate. The assessing authority, after rejecting the application filed by the assessee to grant the benefit of the payment of tax at the compounded rate, has proceeded to complete the best judgment assessment by making an addition of equal amount to the actual conceded turn over in the statement showing the contract amount received. (6) The order passed by the assessing authority was called in question by the assessee before the first appellate authority. The first appellate authority has confirmed the order passed by the assessing authority. (7) The assessee had carried the matter by way of second appeal before the tribunal in T.A.Nos. 821/1998 and 822/1998 and the tribunal, by its order dated 17th December, 2001, while allowing the assessee's appeal, had directed the assessing authority to delete the additions made by the assessing authority to the conceded turn over. (8) While doing so, the tribunal in its order has observed as under:- “The alternate contention of the assessee is that the estimation of the turnovers as done by the assessing authority has no basis. Of course we find some force in the contention of the assessee in this regard. As contented by the assessee the assessing authority has not pointed out 3 ST.Rev.Nos.339&367/04 any case of suppression or omission. As could be seen from the assessment order for the year 1990-91, the assessing authority on enquiry came to know that the contract receipt for the assessment year 1990-91 was Rs.3,93,970/-”. (9) The Revenue, being aggrieved by the order so passed by the tribunal, is before us in these revision petitions. (10) The Revenue has framed the following question of law for our consideration and decision. It is as under: “Whether on the facts and in the circumstances of the case is the Tribunal justified in directing the Assessing Authority to accept the return and complete the assessment without insisting the book of accounts which were not been produced for which no valid explanation was offered.” (11) The respondent, though was served, has remained absent. (12) Sri. Mohammed Rafiq, the learned counsel appearing for the Revenue, would contend that the tribunal was not justified in deleting the additions made by the assessing authority towards probable omissions and suppressions to the conceded turnover. Therefore, submits that the order passed by the tribunal requires to be set aside by this Court. (13) We have carefully perused the order passed by the tribunal. The tribunal, in the course of its order, has observed that at the time of quantification of the tax liability, the assessing authority had enquired the assessee with regard to the contract amount received for the assessment 4 ST.Rev.Nos.339&367/04 years in question. Apart from this, no other enquiry was made by the assessing authority and in fact had not doubted the correctness or otherwise of the statement made by the assessee. In view of this, the tribunal being of the opinion that since there was no material before the assessing authority to arrive at a conclusion that there was any suppression, there was no justification for the assessing authority to have made any further addition to the conceded turn over. (14) The order passed by the tribunal is purely based on the facts. The tribunal has not decided any question of law or has failed to decide any question of law. Since the reason stated by the tribunal in our opinion is not a perverse finding, it is not proper for this court to exercise its powers under Section 41 of the Act to interfere with the impugned order of the tribunal. (15) In that view of the matter, while concurring with the view expressed by the tribunal, we reject the revision petitions filed by the Revenue. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE cl/dk