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 16TH OCTOBER 2008 / 24TH ASWINA 1930 S.T.Rev.No.291 of 2008 ----------------------------------------- T.A.NO.191 OF 2007 OF THE KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH-I, ERNAKULAM (ORDER DATED 30.05.2008). [ASSESSMENT YEAR 1996-97 (KGST)] .................... REVISION PETITIONER/APPELLANT/ASSESSEE:- ------------------------------------------------------------------------- CARBOGRAPHICS PVT. LTD., OLD RAILWAY STATION ROAD, ERNAKULAM, PRESENTLY CARBOCOLOR LTD. BY ADV. SRI.R.MURALIDHARAN (AROOR) RESPONDENT/RESPONDENT/REVENUE:- ------------------------------------------------------------- STATE OF KERALA. BY SPECIAL GOVERNMENT PLEADER (TAXES) SRI.VINOD CHANDRAN. THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 16/10/2008, ALONG WITH S.T.REV.NO.292 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. ------------------------------------------------------- S.T.Rev.Nos.291, 292, 293 & 294 of 2008 -------------------------------------------------------- Dated, this the 16th October, 2008 ORDER H.L.Dattu,C.J. Since the assessee is common and the orders passed by the Tribunal is also common for the assessment years 1996-97 and 1997-98, both under the Kerala General Sales Tax Act, 1963 (“KGST Act” for short) and Central Sales Tax Act, 1956 (“CST Act” for short), these revision petitions are clubbed, heard and disposed of by this common order. (2) The assessee is a dealer, registered under the provisions of the KGST Act and CST Act. The assessee is a Small Scale Industrial Unit (“SSI Unit” for short), engaged in the manufacture and sale of Printing Ink. (3) The assessee had filed his annual returns for the assessment years 1996-97 and 1997-98, both under the KGST Act and CST Act. Since the assessee did not produce the books of accounts, ledgers, etc. in support of the returns filed, the assessing authority, after rejecting the returns filed, has completed the best judgment assessments. (4) The orders so passed by the assessing authority were called in question by the assessee before the first appellate authority. It was S.T.Rev.291 of 2008, etc. - 2 - the specific case of the assessee, that, since he was not in a position to produce the books of accounts in support of his claim made before the assessing authority and since sufficient opportunity was not given to him by the assessing authority, the matter requires to be remanded to the assessing authority for passing a fresh order in accordance with law, reserving liberty to the assessee to produce the books of accounts for the assessment years in question. The appellate authority has conceded to the request made by the assessee and, therefore, after setting aside the orders passed for both the assessment years, had remanded the matter to the assessing authority to pass a fresh order in accordance with law, after affording an opportunity to the assessee to produce the books of accounts in support of the claim made by him in the returns filed. (5) After remand, since the assessee did not produce the books of accounts, the assessing authority has passed yet another order, completing the best judgment assessments. (6) That assessment order was called in question by the petitioner before the first appellate authority. The first appellate authority, noticing that in spite of first remand since the assessee had not produced the books of accounts as directed earlier, has come to the conclusion that the assessee cannot have any relief in the first appeal. Accordingly, has rejected the appeals. S.T.Rev.291 of 2008, etc. - 3 - (7) Being aggrieved by the orders passed by the first appellate authority for the assessment years in question, the assessee was before the Tribunal in T.A.Nos.191, 192, 193 and 194 of 2007. Even before the Tribunal, the assessee could not produce the books of accounts and he only pleaded before the Tribunal to set aside the orders passed by the first appellate authority and also the orders passed by the assessing authority and remand the matter to the assessing authority for de novo enquiry. (8) The Tribunal, after noticing that though sufficient opportunity was given to the assessee, since he could not produce the books of accounts, the assessing authority and the first appellate authority were justified in passing the impugned orders. Accordingly, the Tribunal has rejected all the appeals. (9) Being aggrieved by the common order passed by the Tribunal in T.A.Nos.191, 192, 193 and 194 of 2007 dated 30.05.2008, the assessee is before us in these Sales Tax Revisions. (10) The assessee has framed the following questions of law for our consideration and decision. They are as under: “(a) Whether the assessment orders passed as ex parte for non-production of books of accounts by the assessee for reasons beyond his control is justified? S.T.Rev.291 of 2008, etc. - 4 - (b) Whether the best judgment assessment and estimation of taxable turnover of the assessee at 232% of the conceded turnover is justified, without having any material on record to establish omissions and suppressions? (c) Whether the Tribunal is justified in foreclosing an opportunity to the appellant-assessee for production of books of accounts those were maintained in the ordinary course of business and seized by Income Tax Authorities, to support the returns filed by them?” (11) In exercise of our powers under Section 41 of the KGST Act, we can annul/modify/cancel the orders passed by the Tribunal only on two occasions - firstly, if the Tribunal has erroneously decided any question of law and, secondly, has failed to decide any question of law. (12) In the instant case, it is the case of the assessee, that, the books of accounts for the assessment years in question had been seized by the Income Tax Department and, therefore, he was not in a position to produce the same before the assessing authority. (13) When the matter came up for admission, we had repeatedly asked the learned counsel appearing for the appellant to furnish details with regard to the efforts made by the appellant/assessee to secure or to get back the books of accounts seized by the Income Tax Department. For our query, there is no answer as such by Sri.R.Muraleedharan, learned counsel appearing for the assessee. S.T.Rev.291 of 2008, etc. - 5 - (14) The assessments have to be completed by the assessing authority within the time frame fixed by the statute. In the instant case, the assessee had filed his returns, however, has failed to produce the books of accounts in support of the returns filed. Naturally, the assessing authority has to complete the assessments, after rejecting the returns filed, and to pass a best judgment assessment. That had been done by the assessing authority. That order had been questioned by the assessee before the first appellate authority. The first appellate authority, in order to give an opportunity to produce the books of accounts, had, in fact, set aside the orders passed by the assessing authority and, thereafter, had remanded the matter to the assessing authority to pass a fresh order in accordance with law, after affording opportunity to the assessee to produce the books of accounts. Even after such remand, the assessee has failed to produce the books of accounts before the assessing authority. The assessing authority, being left with no other alternative, has thought it fit to pass a fresh best judgment assessment. The orders so passed by the assessing authority has been confirmed by the first appellate authority as well as by the Tribunal. That only means, that, there is a concurrent finding of fact by all the authorities under the Act. This Court, in exercise of its powers under Section 41 of the KGST Act, is not expected to disturb the concurrent finding of fact by the authorities under the Act and the final fact finding S.T.Rev.291 of 2008, etc. - 6 - authority, viz., the Tribunal unless the findings on facts is a perverse finding. In that view of the matter, we do not see any reason to entertain these revision petitions. (15) Accordingly, while rejecting the revision petitions, we answer the questions of law raised by the assessee in the negative and against the assessee and in favour of the Revenue. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer Judge vku/dk