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 THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 S.T.Rev.No.52 of 2006 ------------------------------------- AGAINST THE ORDER DATED 29.03.2005 IN T.A.NOS.166 OF 2000 & 221 OF 2000 OF THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOTTAYAM. (ASSESSMENT YEAR 1994-95) .................... PETITIONER/APPELLANT/ASSESSEE:- -------------------------------------------------------- THE THAMARAPALLY RUBBER COMPANY LIMITED, POST BOX NO.1, ANCHERIL BANK BUILDINGS, KOTTAYAM-686001. BY ADV. SRI.JOSEPH MARKOSE (SR.) SRI.MITHUN MARKOS RESPONDENTS/RESPONDENT/REVENUE:- ------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), TRIVANDRUM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. ---------------------------------------------- S.T.Rev.No.52 of 2006 ---------------------------------------------- Dated, this the 24th day of July, 2008 ORDER H.L.Dattu,C.J. The assessee is a Limited Company, incorporated under the provisions of the Companies Act. It is also a dealer, registered both under the provisions of the Kerala General Sales Tax Act (“K.G.S.T.Act” for short) and Central Sales Tax Act (“C.S.T.Act” for short). 2. In this revision petition, we are concerned with the assessment year 1994-95 (K.G.S.T. assessment). 3. The assessing authority, based on the inspection report, conducted by the Intelligence Officer of the Department, dated 14.12.2994, has made certain additions to the conceded total and taxable turnover of the dealer, on the ground, that, the assessee has failed to maintain the Stock Register and the Production Register. 4. The assessee has not produced the Stock Register even before the first appellate authority. Therefore, the first appellate authority has accepted the findings of the assessing authority in this regard. Even before the Tribunal, which is the last fact finding authority, the assessee had failed to produce the Stock Register for the assessment year 1994-95. 5. The Tribunal, by its order dated 29th March, 2002 in S.T.Rev.No.52 of 2006 - 2 - T.A.No.166 of 2000, has rejected the assessee's appeal. That is how, the assessee is before us in this revision. 6. The assessee has raised the following questions of law for our consideration and decision. They are as under: “(i) Whether on the facts and in the circumstances of the case and in the light of Annexure-B Report, there is any evidence or material on record for the Appellate Tribunal to confirm the addition of estimated turnover of Rs.10,51,678.86 on the ground that the Petitioner has not produced stock register for verification at the time of inspection on 14-12-1994? (ii) Whether on the facts and in the circumstances the case, the Appellate Tribunal was right in holding that the addition of Rs.10,51,678.86 is right in law? (iii) Whether on the facts and in the circumstances of the case and in the light of the decision of the Hon'ble Supreme Court of India in Maruti Wires Case reported in 122 STC 410 the direction of the Appellate Tribunal to reconsider the levy of interest on the basis of the findings in the decision of the Kerala High Court in the case reported in 12 KTR 133 is right in law?” 7. At the time of hearing of the revision petition, the learned counsel for the assessee, by bringing to our notice Annexure-B, viz., the Shop Inspection Report of the Intelligence Officer of the Department, would submit that the inspecting authority had seen the S.T.Rev.No.52 of 2006 - 3 - Stock Register and, therefore, there is no justification either for the assessing authority or for the appellate authority to conclude that the assessee has not maintained the Stock Register for the assessment year in question. 8. In our view, if, for any reason, the assessee had maintained the Stock Register as contended by him before this Court, the assessee Company could have produced the said Register either before the assessing authority or before the first appellate authority or before the Tribunal, which is the last fact finding authority. Since that has not been done, all the authorities under the Act have concurrently, on facts, have found that the assessee has not maintained Stock Register. This finding of fact cannot be disturbed by this Court in a proceedings under Section 41 of the K.G.S.T.Act, unless the said finding is perverse. 9. In view of the aforesaid finding, the second question of law raised by the assessee requires to be negatived, for the reason that the assessing authority has made addition purely based on Shop Inspection Report and he has come to the conclusion that since the assessee has not maintained Stock Registers, there could be the probable omission and suppression towards the stock as well as the production out of the stock. 10. In so far as the third issue is concerned, the first appellate authority, while modifying the orders passed by the assessing S.T.Rev.No.52 of 2006 - 4 - authority, has remanded the matter to the assessing authority to consider the claim of the assessee in regard to interest payable by the assessee. Therefore, that issue, in our opinion, need not be considered by us. 11. In view of the above, while rejecting the revision petition, we answer the first two questions of law in the negative and against the assessee and in favour of the Revenue. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge