State of Kerala vs Valiyakulangara Hardwares

K.S. Radhakrishnan, J.—This tax revision case was preferred by the State of Kerala raising the following questions of law:

(a) Whether the Sales Tax Appellate Tribunal and the first appellate authority are justified in coming to a conclusion that the suppressed turnover also is entitled to get exemption since the conceded turnover has already suffered tax and for which no evidence is produced by the assessee?

(b) Can the Tribunal and also the first appellate authority come to a conclusion without any materials before it that the suppressed turnover had suffered tax when the accounts of the assessee do not show the said turnover?

Assessee is a dealer in iron and steel. Assessee has returned a total turnover of Rs. 1,76,56,830 for the year 1990-91 claiming exemption for the entire turnover as second sales for which first point tax has already been suffered. Assessing authority after examining the accounts of the assessee for the relevant year had found that there was shortage of 664.750 kilograms of winding wires, which was detected during the shop inspection conducted on October 10, 1990. On the basis of the said finding, accounts were rejected and the assessment was completed by best judgment method. Assessing authority added Rs. 1,76,560 to the conceded turnover. While completing the assessment, turnover conceded by the assessee was given exemption and on the turnover added by the assessing authority no exemption was given on the ground that there was no evidence to show that the added turnover had suffered tax at the point of first sale within the State.

Dissatisfied with the assessment the assessee filed appeal before the Deputy Commissioner (Appeals) as STA No. 28/1992. Appellate authority sustained the addition but found that the addition made is to non-taxable turnover and therefore it was held that tax cannot be levied on the added turnover. On the above basis, appeal was disposed of by the appellate authority on March 12,1992. Aggrieved by the said order, State took up the matter in appeal before the Sales Tax Appellate Tribunal as T. A. No. 653 of 1992. Tribunal sustained the addition with the view that no tax can be collected in respect of the added turnover on the ground that the addition made also represents exempted turnover. Appeal was accordingly dismissed by order dated December 14, 2000. Aggrieved by the same this revision has been preferred.

Sri Georgekutty Mathew, learned Government Pleader appearing for the Revenue, submitted that the appellate authority as well as the Tribunal have committed a grave error in coming to the conclusion that the suppressed turnover is also entitled to get exemption since conceded turnover also has suffered tax. Counsel further submitted, no evidence has been placed before the assessing authority or before the appellate authority or before the Tribunal to show that suppressed turnover has suffered tax. Learned Counsel appearing for the respondent Smt. Mayadevi on the other hand contended that there is no justification in interfering with the order passed by the appellate authority or that of the Tribunal. Counsel submitted that winding wires purchased by local registered dealers is liable to tax on sale. Consequently estimated addition made was arbitrary and unwarranted. Counsel submitted that as the goods were taxable at the first point sales within the State, purchases already effected by the assessee had suffered first point sales tax at the seller''s hands. Therefore, added turnover would also be exempted since the relative purchases had already suffered lax from the hands of the seller.

We are of the view, the appellate authority and the Tribunal have committed grave error in holding that suppressed turnover is also entitled to get exemption since the turnover has already suffered tax. No evidence has been adduced by the assessee to show that suppressed turnover had suffered tax. Place of business was inspected by the Assistant Commissioner (Assessment), Special Circle-Ill, Emakulam on October 10, 1990. On analysing the stock it was found that there was a shortage of 664.750 kilograms of winding wire. Full Bench of this Court in Srcekrishnn Trading Co. v. State of Kerala [1998] 108 STC 14 ker : [1995] 2 KL 255, has held that when the turnover of a dealer who claims to be a second seller originates from unaccounted purchases, he can only be treated as a first seller in so far as the goods involved in such purchases are concerned unless he produces evidence to show that he is not liable to be taxed underline Act. A division Bench of this Court in Rajendra Babu v. State of Kerala [1994] 2 KTR 172 , has held that the burden of proof to prove that the turnover is exempted being second sales is on the assessee. Another division Bench in Bathrey Liquors v. State of Kerala [1996] 4 KTR 387, has held that a dealer who is claiming that his turnover is not liable to be taxed under the Act has to prove that his sales are not taxable.

We are of the view, so far as this case is concerned, the assessee has not adduced any evidence to show that suppressed turnover or the turnover not disclosed had suffered tax at the point of first sale in the State. Accounts of the assessee also did not show that addition had suffered any tax. The assessee had, therefore, not discharged that burden showing that the added turnover had suffered tax. We are of the view, first appellate authority as well as the Sales Tax Appellate Tribunal were not justified in coming to the conclusion that the suppressed turnover; is entitled to get exemption since the conceded turnover had already suffered tax. Above being the legal position, we are inclined to allow this tax revision case, set aside the order of the appellate authority and the Tribunal and restore the order of the assessing authority. Questions of law raised are answered in favour of the Revenue and against the assessee.