Kerala High Court
Tolsaria Brothers vs Asst. Commissioner (Assmt.), Sales Tax ... on 7 December, 1995
Equivalent citations: [2003]133STC638(KER)
JUDGMENT V.V. kamat, J.
1. The assessing authority by the order (exhibit P4) as well as the appellate authority by the order exhibit P5 have considered the factual question in great details and have reached a conclusion that the assessee (present petitioners) as well as M/s. Sakthi & Company are not different from each other in the matter of transactions. They are conducting business from one and the same place.
2. Perusal of the order of the assessing authority reveals that the assessing authority had also conducted personal enquiries from which it was known that door No : VII/543 was the business place of M/s. Tolsaria Brothers (present petitioner) and that a firm in the name and style of M/s. Sakthi & Company in 1982-83 did not actually exist and that the transactions in question have been completed by M/s. Tolsaria Brothers from the same business place in the name of the pre-existing firm M/s. Sakthi & Company. A conclusion is recorded that there can be no intention other than to evade tax of the sales covered therein.
3. The reasoning, on the basis of all the factual details concludes in the following manner :--
"My considered view is that the assessee is in the letter know of the entire persons connected with the sales tax registration of M/s. Sakthi & company as the same was earned in the assessee's premises (sic). The simple and plain truth remains that the business transactions in the name of M/s. Sakthi & Company were operated from the business place of the assessee, i.e., Tolsaria Brothers."
The assessing authority has also considered the prayer of the present petitioner with regard to the claim for right of cross-examination observing that such a course depends on the nature of the proceedings or of the function exercised in connection with the circumstances of the case. The right is denied relying on the legal position in the context. Taking into consideration the factual material the assessment order (exhibit P4) is passed.
4. The appellate order also makes a mention of the personal enquiries of the appellate authority and it is so recorded in the said order in the following manner :
"On ray personal enquiries also it was known that door No : VII/ 543 as on 1982-83 was the business place of M/s. Tolsaria Brothers, that a firm named M/s. Sakthi & Company, did not actually exist during the relevant period and that the transactions in question and had been made by M/s. Tolsaria Brothers, from their business place in the name of non-existing firm, namely, M/s. Sakthi & Company with intention to evade tax. These sales could be effected only after actual purchases."
Even then it is observed that the contentions are also taken into consideration and in regard thereto the following observations in the nature of lindings of fact are to be found in the order :
"The appellants have been provided with details of check-post extracts, which is the material for the purpose of determining the turnover of the appellants. There is also no dispute over the quantum and value of the goods transported. It also remains a fact that the entire persons connected with the firm Sakthi & Company, are known to the appellants and the registration was obtained in the appellants own business premises and the entire transactions of M/s. Sakthi & Company, was operated from the appellants place of business. The assessing authority have rightly stated that the right of cross-examination is not understood or recognised as an invariable attribute of the requirement of reasonable opportunity under Section 17(3) of the Kerala General Sales Tax Act or of natural justice."
Even the appellate authority took into consideration the position of law with regard to the right of cross examination. Consequently the appeals are dismissed.
5. Taking into consideration the two orders in my judgment it is not possible to exercise extraordinary and exceptional jurisdiction under Article 226 of the Constitution of India in view of the position that the conduct of the petitioner to evade tax stares in the face of the record as established by the two fact-finding authorities.
Petition therefore stands dismissed at the stage of admission.