IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 ST.Rev..No. 313 of 2007() ------------------------- TA.197/2006 of S.T.A.T., THIRUVANANTHAPURAM. .................... REVISION PETITIONER/ASSESSEE/APPELLANT: ---------------------------------------------------- K.C. CHACKO, M/S. MUKKADAN'S RESTUARANT AND BAR HOTEL, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.ANIL XAVIER SMT.JAYASREE MANOJ SRI.M.RISHIKESH SHENOY RESPONDENT/RESPONDENT/REVENUE: ------------------------------------------ STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT (TAXES) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SRI.V.K. SHAMSUDEEN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 17/02/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.T.Rev. No. 313 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2009 JUDGMENT Ramachandran Nair,J. Petitioner preferred this revision petition challenging the order of the Tribunal. We have heard counsel appearing for the petitioner and Government Pleader appearing for the respondent. Question pertains to the additions made to the turnover returned by the petitioner who is running a Bar hotel at Thiruvananthapuram. During the year two inspections were carried out and on both occasions stock variations were noticed, consequently, additions were made in the assessment both under first sale and second sale turnover of liquor and food. 2. Counsel for the petitioner relied on the judgment of this Court in assessee’s own case in TRC 299/01 dated 04.06.03 and contended that following the judgment, this year’s case also should be allowed, by reversing the order of the Tribunal and by directing acceptance of books of accounts. It is seen that this Court has decided the case based on the decision of this Court in Lovely STRV : 313/07 -:2:- Thomas v. State of Kerala [113 STC 505]. However, subsequently a Full Bench had the occasion to consider the scope of the judgment in Lovely Thomas's case(supra). Another Division Bench of which one of us is a party, has also considered the application of the decision in Lovely Thomas's case(supra). Going by these later decisions, we do not think the petitioner’s claim for acceptance of books of accounts can be allowed, when the Department on two inspections found stock variation in liquor. However, since the stock variation noticed was not very significant, Tribunal reduced the addition for turnover tax to Rs.2 lakhs. Even though counsel opposes any addition, we do not think there is any justification to cancel the addition because the same will amount to acceptance of books of accounts, in a case where assessee was not found to be maintaining complete books of accounts. However, so far as the assessment of first sales turnover is concerned, we feel the discrepancies in accounts by itself should not render liability on first sales turnover on the assessee. The department has not pointed out any excise case or any irregularity on the source of liquor, i.e., other than from Beverages Corporation. We therefore order deletion of STRV : 313/07 -:3:- assessment of first sale turnover of liquor, i.e. Rs.25,000/-. So far the petitioner's contest against disallowance of second sales turnover of soda is concerned, we do not find that the matter is decided by the Tribunal. It is not known whether the petitioner produced purchase bills before the Tribunal to substantiate their claim. Since Tribunal has not considered or decided the matter, the question does not arise from the order of the Tribunal and we therefore reject this ground. However, it is open to the petitioner to file appropriate petition for review or rectification of the Tribunal’s order. So far as the challenge against the addition of turnover of cooked food is concerned, we do not find any ground to accept the contention of the petitioner. We therefore reject the contentions on this issue. The Revision Petition is disposed of as above. (C.N.RAMACHANDRAN NAIR) Judge. (K. SURENDRA MOHAN) Judge. ttb STRV : 313/07 -:4:- STRV : 313/07 -:5:-