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The Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Vs. Castle Rock Fisheries - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. No. 23 of 1978
Judge
Reported in[1980]45STC101(Ker)
AppellantThe Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes)
RespondentCastle Rock Fisheries
Appellant AdvocateThe Government Pleader
Respondent Advocate S.A. Nagendran,; N.N.D. Pillai,;K.B. Subhagamoni; and D.
DispositionPetition allowed
Cases ReferredErnakulam v. M.K. Ahammed Kutty
Excerpt:
- - 1. in a best of judgment assessment rejecting the books of account of the assessee, the sales tax officer estimated the turnover of the assessee at over rs. 6 lakhs and added 25 per cent of the estimated turnover on the basis of best of judgment. 1,30,000. on appeal by the assessee, the deputy commissioner of sales tax sustained the best of judgment assessment, but reduced the amount added to rs. 50,000. on further appeal to the sales tax appellate tribunal, the assessee contended that there were certain documents which he would like to produce for the purpose of explaining away the discrepancies in his accounts. this was clearly unsustainable......by it and the practice followed by it, it will not be fair or proper to permit the assessee to produce additional evidence at the second appeal stage without giving the assessing officer an opportunity to examine them. so it held that it was not in a position to let in the additional evidence offered by the assessee. having so held, strangely enough, the tribunal proceeded to observe:in any event, since it is submitted before us that there are documentary evidence to explain the discrepancies or the suspicious circumstances pointed out by the learned deputy commissioner (appeals), we feel that we have to give a reasonable opportunity to the appellants to produce them before the assessing officer. so, without adverting to the contentions raised by the appellants, we are setting aside.....
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. In a best of judgment assessment rejecting the books of account of the assessee, the Sales Tax Officer estimated the turnover of the assessee at over Rs. 6 lakhs and added 25 per cent of the estimated turnover on the basis of best of judgment. The amount thus added came nearly to Rs. 1,30,000. On appeal by the assessee, the Deputy Commissioner of Sales Tax sustained the best of judgment assessment, but reduced the amount added to Rs. 50,000. On further appeal to the Sales Tax Appellate Tribunal, the assessee contended that there were certain documents which he would like to produce for the purpose of explaining away the discrepancies in his accounts. This was objected to by the State Representative. The Tribunal recorded that, consistent with the view taken by it and the practice followed by it, it will not be fair or proper to permit the assessee to produce additional evidence at the second appeal stage without giving the assessing officer an opportunity to examine them. So it held that it was not in a position to let in the additional evidence offered by the assessee. Having so held, strangely enough, the Tribunal proceeded to observe:

In any event, since it is submitted before us that there are documentary evidence to explain the discrepancies or the suspicious circumstances pointed out by the learned Deputy Commissioner (Appeals), we feel that we have to give a reasonable opportunity to the appellants to produce them before the assessing officer. So, without adverting to the contentions raised by the appellants, we are setting aside the order of assessment and remitting the files back to the concerned assessing officer directing him to dispose of the files afresh after giving the appellants an opportunity to raise their contentions, to produce any documentary or other evidence and for being heard also.

2. We have little doubt that what the Tribunal did was irregular and wrong. The acceptability of additional evidence by the Tribunal is covered by Rule 48 of the Appellate Tribunal Regulations. The said rule reads as follows:

48. Fresh evidence in appeal,-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Tribunal, but if-

(a) the authority, from whose order the appeal is preferred, has refused to admit evidence which ought to have been admitted;

(b) the party seeking to adduce additional evidence satisfies the Tribunal that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time the order under appeal was passed; or

(c) the Tribunal requires any document to be produced or any witness to be examined to enable it to decide the case or for any other substantial cause;

the Tribunal may allow such evidence or document to be produced or witness to be examined.

3. Acceptability of additional evidence can only be strictly within the four corners of the above rule. This had been pointed out by a recent judgment of this Court in Deputy Commissioner of Agricultural Income-tax and Sales Tax (Lam), Board of Revenue (Taxes), Ernakulam v. M.K. Ahammed Kutty [1976] 38 S.T.C. 210 at 216. Having chosen to find that there is no ground to receive the additional evidence, the Tribunal went wrong in allowing the appeal and directing the Appellate Assistant Commissioner to dispose of the matter afresh in the light of the additional evidence tendered. This was clearly unsustainable. An omnibus remand to the lower authority for the purpose of dealing with the matter afresh in the light of the additional documents tendered by the party was quite improper and unsustainable.

4. We allow this tax revision case and set aside the order of the Sales Tax Appellate Tribunal and remit the appeal back to the Tribunal for fresh disposal in accordance with law and in the light of the observations contained in this judgment. There will be no order as to costs.


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