Kerala High Court
/ Appellant vs /
Author: K.Vinod Chandran
Bench: C.N.Ramachandran Nair, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 8TH DAY OF MARCH 2012/18TH PHALGUNA 1933
OT.Rev.No. 31 of 2012 ()
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AGAINST ORDER DATED 06/12/2011 IN TAVAT.666/2012 of KERALA VAT
APPELLATE TRIBUNAL, ERNAKULAM
REVISION PETITIONER(S):/ APPELLANT
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SRI.THOMAS THOMAS
CHANGAZHACHERIL TIMBER,
ADUKKAM.P.O., TEEKOY,
KOTTAYAM.
BY ADVS.SRI.C.A.SADASIVAN
SRI.JOY P.JOSE
SRI.SOJAN MATHEW
SRI.K.N.KRISHNAN NAMBOOTHIRI
SRI.C.V.SASI
SRI.K.JAYAMOHANAN PILLAI
RESPONDENT(S):/ RESPONDENT
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STATE OF KERALA
BY MR.BOBBY JOHN, SR.GOVERNMENT PLEADER
THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR
ADMISSION ON 08-03-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
O.T.REV.NO.31/2012
APPENDIX
REVISION PETITIONER'S EXHIBITS
ANNEXURE-A1 : COPY OF ASSESSMENT ORDER FOR THE YEAR 2003-04
DATED 20/10/2006 OF THE CTO, PALA.
ANNEXURE-A2 : COPY OF ASSESSMENT ORDER FOR THE YEAR 2004-05
DATED 20/10/2006 OF THE CTO, PALA.
ANNEXURE-A3 : COPY OF ORDER FOR THE YEAR 2005-06 DATED
08/03/2010 OF CTO, PALA.
ANNEXURE-A4 : COPY OF ORDER OF THE 1ST APPELLATE AUTHORITY IN
KVATA 219/10 DATED 31/08/2010.
ANNEXURE-A5 : ORIGINAL ORDER OF THE APPELLATE TRIBUNAL IN TAVAT
NO.666/2010 DATED 06/12/2011.
ANNEXURE-A6 : COPY OF SALE BILL NO.35 DATED 02/03/2005 VERIFIED
BY THE CTO, PALA ON 20/10/2006.
//TRUE COPY//
PA TO JUDGE.
jg
C.N.RAMACHANDRAN NAIR, &
K.VINOD CHANDRAN, JJ.
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O.T. Rev. No.31 of 2012
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Dated this the 8th day of March, 2012.
JUDGMENT
Ramachandran Nair, J.
Revision is filed against order of the Tribunal modifying a VAT assessment completed on the assessee for the year 2005-2006. We have heard counsel for the petitioner and Government Pleader for respondent.
2. The petitioner was in business only for two years as a registered dealer under the KGST Act i.e. for 2003-2004 and 2004- 2005. The VAT regime was introduced by the State from 2005-2006 and petitioner did not take a registration under the KVAT Act. According to the petitioner, closure of business was reported on 14.8.2005 but without taking registration under the KVAT Act for the broken period. Since petitioner had no registration and no turnover was reported, there was no scope for assessment. However, a load of timber valued around Rs.70,000/- was found transported in a vehicle with an old bill of the petitioner bearing number 37 dated 17.11.2005. O.T. Rev. 31/2012 2 A case of attempted evasion was booked and petitioner was subject to a penalty of Rs.18,225/-. Based on this, an assessment was initiated for 2005-2006 and turnover was estimated by holding that 36 bills of same value would have been raised by the petitioner for period prior to date of detection of the transport and an estimated 25 loads was taken for the balance period. Based on the estimation of 60 loads, of which only one load was found transported by the petitioner, turnover of Rs.43 lakhs was assessed. The petitioner's appeals against assessment at two levels ended up with a reduction of one third of the turnover which was granted by the Tribunal on an estimation basis. It is against this order of the Tribunal petitioner has filed this revision.
3. During hearing counsel for the petitioner produced the old bill book with bill No.35 dated 2.3.2005 signed by the Assessing Officer. According to the petitioner, thereafter only one bill is missing and so much so, the estimation of turnover upto 35 bills as escaped from assessment is untenable. Government Pleader raised the contention that the bill book produced as such is not admissible and according to him, estimation is made on a logical and reasonable basis. O.T. Rev. 31/2012 3
4. After hearing both sides, we are of the view that the department rightly assessed the petitioner because the bill used for transport was printed and used by the petitioner. Either petitioner would have used the bill or for the petitioner somebody else would have used the bill. In either case petitioner had business during 2005- 2006 is evident. However, with regard to dispute on turnover, we feel petitioner has a genuine grievance because there is no justification to assume that all the bill numbers upto 37 were bills used for sale of goods during the accounting year. Similarly there is nothing to indicate that petitioner has done business with sales tax bills for the remaining period of the year, particularly when the item namely, timber, is taxable under the KVAT Act and only KVAT bills are valid bills. Going by the two preceding years' assessments, we find the maximum turnover assessed in an year is Rs.5 lakhs. Considering the fact that petitioner has done business without filing return and without proper books of accounts, we feel the turnover could be estimated on a reasonable basis at double the maximum turnover assessed for the immediately two preceding years. Accordingly we allow the revision by modifying the O.T. Rev. 31/2012 4 Tribunal's order by refixing taxable turnover at Rs.10 lakhs. The Assessing Officer is directed to modify the assessment and issue revised order within a period of one month from date of production of copy of this judgment. The O.T.Rev. case is allowed in part by modifying the Tribunal's order as above.
C.N.RAMACHANDRAN NAIR Judge K.VINOD CHANDRAN Judge pms