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R. Narasimhan Poti Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 27, 28 and 29 of 1968
Judge
Reported in[1971]27STC39(Ker)
AppellantR. Narasimhan Poti
RespondentThe State of Kerala
Appellant Advocate S.A. Nagendran,; C.P.S. Prasad,; P.A. Mohammed and;
Respondent AdvocateGovernment Pleader
Cases ReferredIn Gosri Dairy v. State of Kerala
Excerpt:
.....of accounts and determined the turnover to the best of his judgment. against this decision of the appellate assistant commissioner, the assessee as well as the state appealed before the sales tax appellate tribunal. on behalf of the revenue it was pointed out that the appellate tribunal had clearly observed that the estimate of turnover made by the appellate assistant commissioner was without sufficient data or material and that there was nothing on record to indicate how the appellate assistant commissioner arrived at the monthly sales figure. in our opinion, the contention of the revenue is well-founded and has to be accepted. on the other hand, the method adopted by the assessing authority as well as the appellate tribunal is seen to have been adopted in the case of similar hotels..........and 1964-65 have been filed by the same assessee against a consolidated order of the sales tax appellate tribunal, trivandrum. the petitioner is the owner of a hotel and tea-shop at alleppey. the assessing authority noticed various defects in the accounts maintained by the petitioner for the three years under revision and consequently rejected the books of accounts and determined the turnover to the best of his judgment. appeals were filed against the assessment orders for the three years before the appellate assistant commissioner and it was contended that the rejection of accounts was not justified and that the turnover estimated was excessive. the appellate assistant commissioner upheld the rejection of the accounts but granted some relief to the petitioner by estimating the.....
Judgment:

P. Unnikrishna Kurup, J.

1. These three tax revision cases relating to the assessment years 1962-63, 1963-64 and 1964-65 have been filed by the same assessee against a consolidated order of the Sales Tax Appellate Tribunal, Trivandrum. The petitioner is the owner of a hotel and tea-shop at Alleppey. The assessing authority noticed various defects in the accounts maintained by the petitioner for the three years under revision and consequently rejected the books of accounts and determined the turnover to the best of his judgment. Appeals were filed against the assessment orders for the three years before the Appellate Assistant Commissioner and it was contended that the rejection of accounts was not justified and that the turnover estimated was excessive. The Appellate Assistant Commissioner upheld the rejection of the accounts but granted some relief to the petitioner by estimating the turnover on the basis of average monthly sales. Against this decision of the Appellate Assistant Commissioner, the assessee as well as the State appealed before the Sales Tax Appellate Tribunal. The Tribunal while sustaining the decision of the Appellate Assistant Commissioner regarding the rejection of the accounts, modified the order of the Appellate Assistant Commissioner regarding the turnover. The Tribunal confirmed the orders of assessment of the assessing authority relating to the years 1962-63 and 1963-64 and directed the assessing authority to recompute the turnover for 1964-65 in the light of its earlier observations.

2. The assessee's learned counsel frankly conceded that the order of the authorities below regarding the rejection of the accounts was correct. His grievance, however, is that the assessing authority had adopted different methods for arriving at the turnover for the three different years. According to the counsel, the turnover for the first year was estimated at five times the total working expenses, that for the year 1963-64 was arrived at by adding 10 per cent. to the turnover determined for the year 1962-63 and that for the year 1964-65 had been estimated by adding Rs. 20,000 for probable suppressions in purchases and by taking 1 1/2 times the total purchases so estimated. It was urged that the Appellate Assistant Commissioner had rightly held that the basis adopted for the estimate was incorrect and that he had adopted the monthly average sales as the basis of the estimate. On behalf of the revenue it was pointed out that the Appellate Tribunal had clearly observed that the estimate of turnover made by the Appellate Assistant Commissioner was without sufficient data or material and that there was nothing on record to indicate how the Appellate Assistant Commissioner arrived at the monthly sales figure. In our opinion, the contention of the revenue is well-founded and has to be accepted. The Appellate Assistant Commissioner has not given any basis for arriving at the monthly sales and it is certainly open to the attack of being arbitrary and with out-materials. On the other hand, the method adopted by the assessing authority as well as the Appellate Tribunal is seen to have been adopted in the case of similar hotels and it is also pointed out that it was usual to arrive at the turnover by taking five times the working expenses in the case of other hotels. In support of this contention, counsel for the revenue brought to our notice the decision of the Mysore High Court in Rangappa Pandurang Kamath v. State of Mysore [1962] 13 S.T.C. 714, where the court has held that fixing the total turnover at five times the working expenses could not be considered as arbitrary or capricious. In these circumstances, we see no reason to consider the basis, adopted by the Sales Tax Appellate Tribunal as incorrect.

3. The next contention raised by the petitioner's learned counsel is that the authorities below are wrong in including the sales of live-stock and cow-dung in the turnover as the petitioner was not. a dealer in live-stock or cow-dung and was not carrying on business in those articles. It was urged that for the petitioner's hotel business large quantity of milk was required and for this purpose he was maintaining cattle, that as and when the cattle grew old they were sold away and fresh ones purchased and that cow-dung was sold not in the course of business but only as a waste material. Reliance was placed on the decision of the Supreme Court in State of Gujarat v. Raipur . [1967] 19 S.T.C. 1 (S.C.), where the Supreme Court has disapproved the decision of this court in Gosri Dairy v. State of Kerala [1961] 12 S.T.C. 683. In Gosri Dairy v. State of Kerala, the sale of cattle and dung effected by a dairy was considered by this court as part of the business of the dairy and on that basis it was held that such turnover was liable to sales tax.

4. The Supreme Court observed:

Merely because a person is carrying on business of selling a commodity, it cannot be inferred from sale by him of another commodity in the course of that business that he is carrying on business in that other commodity also.

5. A careful perusal of the decision of the Supreme Court makes it clear that unless a person is carrying on business in the particular commodity sold, the turnover regarding that commodity cannot be assessed to sales tax. In this case, the petitioner is a hotel-keeper and his business consists in the sale of articles of food. He is not carrying on business in cow-dung and live-stock. The sales in respect of those commodities cannot be considered to be those in the course of business and they have merely been necessitated by circumstances, namely, that the petitioner had to maintain cattle for obtaining milk which was necessary for his hotel business. In this view of the matter, we are of the opinion that the authorities below were not right in considering that the turnover relating to live-stock and cow-dung was assessable to sales tax. We direct that the sales relating to live-stock and cow-dung be excluded from the assessable turnover in respect of all the three years.

6. The revision petitions are partly allowed. In the circumstances we make no order as to costs.


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