IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 ST.Rev..No. 214 of 2009() ------------------------------- TA.313/2008 of S.T.A.T.ADDL.BENCH,ERNAKULAM .................... REVISION PETITIONER/RESPONDENT/REVENUE ---------------------------------------------------------- STATE OF KERALA REP. BY JOINT COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY GOVT. PLEADER SRI.MUHAMMED RAFEEQ RESPONDENT(S)/APPELLANT/ASSESSEE ----------------------------------------------- M/S. V.U.S. TIMBERS (P) LTD., MUVATTUPUZHA. BY ADVS. SRI.T.M.SREEDHARAN SRI.V.P.NARAYANAN SMT.C.K.SHERIN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 07/10/2010, ALONG WITH STRV NO. 228 OF 2009, STRV NO. 230 OF 2009 & STRV NO. 254 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------ ST.Rev.Nos.214, 228, 230 & 254 OF 2009 ------------------------------------------- Dated this the 7th day of October, 2010 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, J. The question raised in all the connected cases is whether the Tribunal was justified in cancelling the assessment at higher rate on the ground that for violation in issuing Form 18 penalty should be levied on the purchasing dealer. 2. We have heard the learned Government Pleader appearing for the petitioner and Adv. T.M. Sreedaran appearing for the respondent. 3. After going through the Tribunal's order and after hearing both sides, we are of the view that Tribunal has not considered the appeals with reference to facts found by the assessing officer and confirmed by the 1st appellate authority. The case itself was investigated based on the directions issued by this Court and the same is evident from the STRev.Nos.214, 228, 230 & 254 OF 2009 2 assessment order itself. The judgment relied on by the Tribunal in Bharat Refineries' case applies only to genuine cases of sale between two registered dealers. On the other hand, what is stated in the assessment order is that the transactions of sales were bogus. In fact, Government Pleader has referred to the observations of this Court in ST.Rev.No. 14/2009 dated 11.6.2009, wherein we have stated that bogus transactions are not covered by the decision reported in Dy. Commissioner of Sales Tax, Board of Revenue Ernakulam v. Bharath Refineries Ltd., Madras [1978(2) STC 225]. Since the Tribunal being the final fact find authority is bound to consider the findings in the assessment based on which the conclusions are drawn and unless the findings are demolished, the Tribunal has no authority to reverse the order. We, therefore, set aside the orders of the Tribunal and restore the appeals to the files of Tribunal with direction to them to go through the orders carefully and decide the appeals based on facts and materials available on record. Both the assessee and the department will be given sufficient opportunity for hearing. The Tribunal is directed to dispose of the appeal afresh within a period of three STRev.Nos.214, 228, 230 & 254 OF 2009 3 months from now. If required, the Tribunal can call for the assessment records of purchasers for cross checking transactions and to check genuineness of the same. (C.N.RAMACHANDRAN NAIR, JUDGE) (K.SURENDRA MOHAN, JUDGE) ps