Dismissed

State of Kerala v. M/S.Asian Granitor India Ltd.

Kerala HC2 Feb 2016ST.Rev./43/2015

Case brief

AI extract

What is this about?

In this sales tax revision, the High Court of Kerala dismissed the State's challenge against the Tribunal's decision. The court held that the appellate authority correctly relied on a statutory report from the assessing authority under Rule 38(4), as no concrete evidence of sales suppression was found.

What did the court decide?

Revision dismissed; decisions of the first appellate authority and the Tribunal affirmed.

State of Kerala Vs M/S.Asian Granitor India Ltd. — GST and Indirect Tax | Kerala HC (2016)

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'CR'

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 2ND DAY OF FEBRUARY 2016/13TH MAGHA, 1937

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ST.Rev..No. 43 of 2015

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AGAINST THE ORDER IN TA 55/2013 of AGRL.I.T.& S.T. APPELLATE TRIBUNAL ADL.BENCH,ERNAKULAM DATED 30-05-2015

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PETITIONER/APPELLANT/RESPONDENT/REVENUE:

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STATE OF KERALA

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REPRESENTED BY THE DEPUTY COMMISSIONER (LAW) COMMERCIAL TAXES, ERNAKULAM.

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BY SENIOR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN

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RESPONDENT/RESPONDENT/APPELLANT/ASSESSEE:

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M/S.ASIAN GRANITOR INDIA LTD.

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KADAVANTHRA, KOCHI, PIN-682020.

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BY ADV. SRI.K.N.SREEKUMARAN BY ADV. SMT.V.P.SEENA DEVI

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THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 02-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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'CR'

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THOTTATHIL B.RADHAKRISHNAN & ANU SIVARAMAN, JJ.

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= = = = = = = = = = = = = = = = = = = = = = = S.T.Rev.No.43 of 2015

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= = = = = = = = = = = = = = = = = = = = = = = Dated this the 2^nd day of February, 2016

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JUDGMENT

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Thottathil B.Radhakrishnan, J.

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1.Heard Smt.Shoba Annamma Eapen, learned Senior Government Pleader appearing for the appellant/State and Adv.K.N.Sreekumaran appearing for the respondent.

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2.This revision under Section 41 of the Kerala General Sales Tax Act, 1963 is by the Revenue against concurrent decisions of the first appellate authority and the Tribunal holding against the Revenue in matters relating to assessment of the respondent dealer having different branches and which had transferred goods from its different branches in India. The assessee challenged the assessment order. The first appellate authority thought it appropriate to take recourse to Rule 38(4) of the Kerala General Sales Tax Rules, 1963, for short, the

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S.T.Rev.No.43 of 2015

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“Rules” and therefore, called for a report from the assessing authority. Such report has to be made after verification of records, documents and other evidences. The assessing authority, as is discernible from Annexure B first appellate order, submitted before the D.C. (Appeals) who is the appellate authority that there is no concrete evidence to substantiate any sales suppression and the resultant situation was that the appellant's case stood covered in its favour by the decision of this Court in Tamil Nadu News Print and Papers Ltd. v. State of Kerala (O.T.Rev.No.9 of 2012). The Tribunal affirmed the said view.

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3.The learned Senior Government Pleader argued that a decision in the aforesaid line could have been arrived at by the first appellate authority and the Tribunal only after assessing the records, documents and other evidences and without looking into the accounts of the assessee, the first appellate authority would not have reached at any such conclusion. It is also pointed out that in Tamil Nadu News Print and Papers Ltd's case, it was disclosed that the accounts were considered

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S.T.Rev.No.43 of 2015

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by the authorities and the assessee was a Government concern.

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4.We are not impressed with the submission on behalf of the Revenue, for the reasons more than one. Firstly; that an assessee is from the Government sector, by itself does not add any credibility to its books of accounts, unless, of course, it is subjected to a compulsory statutory audit which audit by itself will result in a report of evidentiary value in terms of relevant statute laws. Secondly and more importantly, the provision in sub-rule 4 of Rule 38 of the Rules whereby the appellate authority authorizes the assessing authority to put up a report for consideration, necessarily pre-supposes that such report will have to be placed only after verification of records, documents and other evidences. This rule is the device by which the appellate authority's work as such gets reduced, unless, of course, the report of the assessing authority gets attacked before the appellate authority. Due credence has to be given to the report that the assessing authority may place before the appellate authority in accordance with sub-rule 4 of

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S.T.Rev.No.43 of 2015

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Rule 38 because that is a statutory report. The procedure for making such report is contained in sub-rule 4 of Rule 38 itself.

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5.In the case in hand, such report having been placed by the assessing authority before the appellate authority and that report having been acted upon on the basis of the submission of the assessing authority that there is no concrete evidence to substantiate any sales suppression, we are unable to see that any question of law was erroneously decided by the appellate tribunal or left undecided by it. Hence, we do not find any merit in this revision. It fails.

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In the result, this revision is dismissed.

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sd/-

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Thottathil B.Radhakrishnan, Judge

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sd/- Anu Sivaraman, Judge

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sj3/2

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TRUE COPY