IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 ST.Rev..No. 230 of 2010() ------------------------- TA.314/2009 of S.T.A.TRIBUNAL,ADDL.BENCH,KOZHIKODE. .................... PETITIONER ------------------- M/S.WIPRO LIMITED, KRS BUILDING, CHEROOTY ROAD, KOZHIKODE-673 032. REPRESENTED BY ITS ACCOUNTS OFFICER, MR.SALIL THAIKANDIYIL. BY ADV. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), TRIVANDRUM. GOVERNMENT PLEADER, MOHAMED RAFEEQ THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 18/07/2011, ALONG WITH STRV NO. 258 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STRV.230/2010 ANNEXURES: ANNEXURE-A COPY OF LETTER DT.26.7.2007 OF THE DEPUTY COMMISSIONER OF SALES TAX (ASSMT) AURANGABAD. ANNEXURE-B: COPY LIST OF GOODS TRANSPORTED DURING 1999-2000 FROM WALUJ TO CALICUT TOGETHER THE STOCK TRANSFER INVOICES, LORRY TRANSPORT RECEIPT ETC. ANNEXURE-C: COPY OF GOODS INWARD REGISTER. ANNEXURE-D: COPY OF CERTIFICATE ISSUED IN MARCH BY PETITIONER'S WALUJ OFFICE. ANNEXURE-E: COPY OF PENALTY ORDER OF THE INTELLIGENCE OFFICER FOR RS.1,10,35,936/- ANNEXURE-F: COPY OF ORDER DT.30.6.2009 ISSUED BY THE DEPUTY COMMISSIONER (APPEALS) ANNEXURE-G: IMPUGNED ORDER DT.22.1.2010 OF THE APPELLATE TRIBUNAL. //TRUE COPY// PA TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ---------------------------------------------- S.T.R.V.Nos.230 and 258 OF 2010 ----------------------------------------------- Dated this the 18th day of July, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, J. The order challenged in the connected revision cases, one filed by the assessee and the other by the State, is the one issued by the Sales Tax Tribunal modifying the penalty levied against the assessee. While the assessee is challenging the order of the Tribunal confirming penalty, the State has filed revision pointing out the mistake in the operative portion of the order wherein the Tribunal does not say that the penalty sustained is twice the amount of tax, which is the net result of their finding. 2. We have heard the learned senior counsel appearing for the petitioner and the learned Government Pleader for the State. S.T.R.V.Nos.230 & 258/2010 2 3. Penalty proceedings were initiated based on information received by the Sales Tax Department from the sales tax authorities in Aurangabad where assessee is assessed tax. The query raised by the C.T.O., Aurangabad to the officer in Kerala was whether the assessee has accounted receipt of goods worth Rs.1,44,87,442.50/- in Kerala against which 'F' Form No.954170 issued from Kerala was produced before the Officer at Aurangabad. When the Assessing Officer checked the accounts of the assessee, it was seen that the said 'F' Form was seen cancelled in the 'F' Form register maintained by the assessee. The assessee has a case that the entire goods were received and accounted in Kerala against which 'F' Form No. 954200 was issued for production before the C.T.O. Aurangabad. Strangely, none of the authorities have cross checked with the Aurangabad Officer whether assessee's claim is correct. The Tribunal also has not considered the significance of assessee's contention and the need to verify it's correctness. 4. After hearing both sides and after going through the Tribunals order, what we find is that the matter requires cross S.T.R.V.Nos.230 & 258/2010 3 verification with the C.T.O. Aurangabad. It was the duty of the assessee atleast to produce the CST assessment order issued from Aurangabad for the relevant year regarding proof of exemption granted on stock transfer based on 'F' form No.954200 stated to have been issued by the assessee. In view of the assessee's claim which is in conflict with the particulars furnished by the C.T.O. Aurangabad, the assessee should have been asked to produce certificate from the C.T.O. on the break up details of exemption on stock transfer to Kerala allowed and the 'F' forms produced. Further evidence of transport to Kerala, accounting receipt of goods and accounts on sales made in Kerala should have been verified. If 'F' form 954200 was issued after issuance of the communication by C.T.O., Aurangabad it is obviously an effort to cover up evasion tried. The assessee's case that 'F' form first issued was cancelled is prima facie inadmissible because 'F' form can be cancelled only after collecting original back from the Assessing Officer in Aurangabad and cancellation has to be done only on the original and not on the counterfoil. There is also nothing to indicate that the cancellation was intimated by the assessee to the CTO, S.T.R.V.Nos.230 & 258/2010 4 Aurangabad and in the place of the cancelled 'F' form, that is, 954170, the assessee has issued 'F ' form No.954200 based on which exemption is said to have been allowed by the CTO, Aurangabad. In the absence of confirmation from the CTO, Aurangabad the assessee obviously cannot establish the claim of cancellation and substitution of one F form by other. 5. Prima facie, a case is made by the department because 'F' form purported to have been issued for the stock transfer received was not infact utilised even according to the assessee covering the stock transfer receipt. So much so, it is duty of the assessee to establish that another 'F 'form was issued in the place of the cancelled one. Besides this, the assessee is found to obtain back the original 'F' Form No. 954170 from the CTO, Aurangabad before whom it was obviously produced. We, therefore, feel one more opportunity can be granted to the assessee to get confirmation from C.T.O, Aurangabad, assessment order and to get back the original 'F' form No.954170 from the Assessing Officer. S.T.R.V.Nos.230 & 258/2010 5 6. We give one more opportunity to the assessee to produce all these documents before the Assessing Officer to reconsider the matter which should be done after cross checking the factual position with the C.T.O., Aurangabad. So far as the department's case for correction of the mistake in the Tribunal's order, we notice that there is genuine mistake in the Tribunal's order. However, since levy of penalty itself is remanded to the Assessing Officer, we set aside the Tribunal's order on this issue and the same is also remanded to the Officer, leaving freedom to the Officer to consider whether maximum penalty is called for which arises only if penalty itself is payable. Assessee is given two months time from now to produce documents from the CTO, Aurangabad. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps