IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 ST.Rev..No. 263 of 2010() ------------------------- TA.19/2009 of S.T.A.TRIBUNAL,ADDL.BENCH,KZD. .................... REVISION PETITIONER/RESPONDENT/REVENUE ---------------------------------------------------------- STATE OF KERALA, REP.BY DEPUTY COMMISSIONR (LAW), COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER SRI.MOHAMMED RAFEEQ RESPONDENT(S): APPELLANT/ASSESSEE --------------------------------- M/S.HOSPITAL BEDS, OLAVANNA,KOZHIKODE. ADV. SRI.N.MURALEEDHARAN NAIR FOR R SMT.K.HYMAVATHY THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 14/03/2011, ALONG WITH STRV NO. 265 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & B.P.RAY, JJ. ``````````````````````````````````````````````````````` S.T.Rev. Nos.263 & 265 of 2010 ``````````````````````````````````````````````````````` Dated this the 14th day of March, 2011 O R D E R Ramachandran Nair, J. Heard the learned Government Pleader for the petitioner and Advocate Sri.Muralidharan Nair, who took notice on admission for the respondent. The revisions are filed against the orders of the Tribunal, confirming the first appellate order, whereby the assessments completed for 2002-03 and 2003-04 were cancelled. The finding of the Tribunal is that besides incorporating the findings in the penalty order in the assessment, the Assessing Officer has not made any enquiry or given any independent finding. Tribunal's observations are quite right because it was the duty of the Assessing Officer to conduct enquiry and find in his own way based on materials the turnover for assessment. However, there is nothing to indicate that the STRev.263&265/2010 : 2 : findings in the penalty order cannot be relied on by the assessing authority in the course of assessment. In any case, if the penalty is sustained, certainly the assessment on the turnover based on which penalty is levied also is sustainable. If the Assessing Officer collects evidence, it is open to him to estimate turnover and assess over and above what was detected based on which penalty was levied. Since penalty orders are set aside and remanded by the first appellate authority, we feel the Tribunal should have remanded the assessments instead of just cancelling the assessments. We, therefore, allow the revisions by vacating the orders of the Tribunal and that of the first appellate authority and restore the assessments to the file of the Assessing Officer, who should make the assessments after penalty orders are revised and, if necessary, after making enquiries in his own way. The assessee should be STRev.263&265/2010 : 3 : given sufficient opportunity before assessment is made again after fresh orders are received in the penalty cases. Sd/- (C.N.RAMACHANDRAN NAIR, JUDGE) Sd/- (B.P.RAY, JUDGE) aks // True Copy // P.A. To Judge