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 FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 S.T.Rev.No.63 of 2007 -------------------------------------- T.A.NO.721/2004 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, PALAKKAD - ORDER DATED 10.02.2005. (ASSESSMENT YEAR 2001-2002) .................... REVISION PETITIONER/APPELLANT/ASSESSEE:- --------------------------------------------------------------------- MOHAMMED P.V, PROPRIETOR,P.V.TRADE LINKS, COURT ROAD, PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADV. DR.K.B.MUHAMED KUTTY (SR.) SRI.K.M.FIROZ RESPONDENT/RESPONDENT/REVENUE:- ----------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. --------------------------------------------- S.T. Rev.No.63 of 2007 ---------------------------------------------- Dated, this the 14th November, 2008 ORDER H.L.Dattu, C.J. This revision petition is filed against the orders passed by the Sales Tax Appellate Tribunal, Additional Bench, Palakkad in T.A.No.721 of 2004 dated 10th February, 2005. (2) The relevant assessment year is 2001-02. (3) The assessee is a dealer, registered under the provisions of the Kerala General Sales Tax Act, 1963 (“Act” for short). He is a dealer in ball pens. (4) The assessing authority has completed the assessment. Thereafter, finding that the assessee has not accounted five inter-State purchases, the assessing authority has issued a pre-assessment notice under Section 19 of the Act, proposing to reopen the assessment. The assessee could not object to the proposal made, due to his illness and, therefore, the assessing authority has completed the reassessments under Section 19 of the Act. (5) The orders so passed by the assessing authority was the subject matter of appeal before the first appellate authority in S.T.A.No.103 of 2004. S.T.Rev.63 of 2007 - 2 - (6) Before the first appellate authority, the petitioner/assessee had produced certain documents to prove that the goods covered under the four bills out of the five were not taken delivery by the assessee and the 5th bill was properly accounted. The first appellate authority, by its order dated 14.9.2004, has rejected the said contention, but has granted some relief to the petitioner, by reducing the addition made by the assessing authority at two times, to equal the amount of the actual sales suppression. (7) Assessee, not being satisfied with the orders so passed by the first appellate authority, was before the Tribunal, in second appeal. (8) The Appellate Tribunal by its orders dated 10.2.2005 has rejected the assessee's appeal. While doing so, the Tribunal in its cryptic order has stated as under: “On a detailed evaluation and analysis of entire contentions and evidence on record it would conclusively prove the case of the respondent. It is evidenced that the lower appellate authority redressed the grievance of the appellant. However the lower assessing authority erred in his finding. But the order of the lower assessing authority was modified by the lower appellate authority. It goes without saying that the order of the lower appellate authority will render justice to the parties. Therefore the order of the lower appellate authority is confirmed. There is no error in the order of the lower appellate authority. Thus this point is answered in favour of the respondent”. S.T.Rev.63 of 2007 - 3 - (9) Being aggrieved by the orders so passed by the Tribunal, the assessee is before us in this revision petition. (10) The assessee has framed 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 are the authorities below justified in law in not considering the grounds and not examining the evidences produced before them before drawing adverse reference against the petitioner? (ii) Have not the authorities below passed their orders on irrelevant grounds without applying mind to the material on record? (iii) Is the Appellate Tribunal justified in law in disposing of the appeal by a vague and non-speaking order? (iv) When the inter-State consignment has not been delivered to the assessee and the relevant documents were returned to the consignor by the Bank, can the authorities presume that there occurred inter-State purchase and consequential local sale within Kerala leading to evasion of tax under KGST Act? (v) Is not the addition excessive and arbitrary on the facts and circumstances of the case?” (11) Dr.K.B.Mohammedkutty, learned Senior Counsel appearing for the petitioner, would contend, that, though the petitioner had produced all documents with regard to the alleged five inter-State purchases before the first appellate authority, the said authority had failed to consider the relevant S.T.Rev.63 of 2007 - 4 - aspects relating to non-delivery of goods and the Tribunal, which is the last fact finding authority, by a non-speaking order, has affirmed that order of the first appellate authority. Therefore, submits, that, the orders passed by the Tribunal requires to be set aside and the matter requires to be remitted back to the Tribunal for passing fresh order in accordance with law. (12) In support of his contention, the learned counsel has relied upon the observations made by this Court in the case of Girish Kumar, K.E. v. Sales Tax Appellate Assistant Commissioner [(2001) 122 STC 546 (Ker.)]. In the said decision, the Court has observed as under: “2. After reading the order passed by the Appellate Tribunal, we are of the view that the matter should be reconsidered by the Appellate Tribunal. In paragraph 5 of the Tribunal's order, it has extracted the findings of the Appellate Assistant Commissioner. In paragraph 6, it is stated as follows: The Appellate Assistant Commissioner has considered all aspects of the case in the right perspective. The order of the Appellate Assistant Commissioner is speaking in all material particulars. We agree with the findings of the Appellate Assistant Commissioner. According to us, this kind of disposal is not proper. Section 39 of the Kerala General Sales Tax Act, 1963, gives power to file an appeal before the Appellate Tribunal against certain orders. It has been held in Deputy Commissioner of Sales Tax (Law) v. G.Gopinatha Pillai 1986 KLT SN 3, corresponding to [1986] 61 STC 314 (Ker.) that the jurisdiction of the Appellate Tribunal is co-extensive with that of the assessing authority. It is S.T.Rev.63 of 2007 - 5 - true that the appellate authority should not lightly discard findings of fact based on evidence. It is open to the appellate authority to reappreciate the facts and reach a conclusion at divergence with that of the lower authority. Hence it is the duty of the appellate authority to assess the law and facts independently. If it finds that the findings arrived at by the authorities below are correct and the provisions of law have been complied with properly, then it can agree with the lower authority; otherwise it can interfere with the orders of the subordinate authorities. It may be true that in many cases it may agree with the findings of the lower authorities. But that does not mean that the Tribunal has not got power to assess the evidence independently. A perusal of the order of the Tribunal shows that it has not contributed any single independent finding. It has only approved the order of the lower authorities without stating any further. The arguments of the counsel for the appellant have not been considered on their proper perspective”. (13) We have carefully perused the orders passed by the Appellate Tribunal. By a cryptic order, the Tribunal has rejected the assessee's appeal, confirming the orders passed by the first appellate authority. The Tribunal, being the last fact finding authority, ought to have considered the contentions canvassed by the assessee. The Tribunal has not contributed any single independent finding. Therefore, we are of the firm opinion, that, the orders passed by the Appellate Tribunal requires to be set aside and the matter requires to be remanded to the Tribunal for disposal in accordance with law. S.T.Rev.63 of 2007 - 6 - (14) Accordingly, we pass the following: Order (i) The revision petition is disposed of. (ii) The order passed by the Tribunal in T.A.No.721/2004, dated 10th February, 2005, is set aside. (iii) The matter is remitted to the Tribunal, and the Tribunal is directed to restore T.A.No.721 of 2004 to its file and then pass a reasoned order. (iv) All the contentions of the parties are left open. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer Judge vku/-