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1990 DIGILAW 513 (KAR)

AO v. COMMISSIONER OF COMMERCIAL TAXES.

1990-09-13

K.B.NAVADGI, M.P.CHANDRAKANTARAJ

body1990
ORDER M. P. CHANDRAKANTARAJ URS, J. - This is sales tax revision petition filed by an assessee under the Karnataka Sales Tax Act, 1957. His return for the year 1976-77 was not accepted by the assessing authority. We found many faults, both on inspecting the account books produced as well as on personal inspection of the restaurant itself along with the intelligence staff. In that circumstance, he issued a proposition notice under section 12(3) read with section 12-B(4) and rule 16 of the Karnataka Sales Tax Act and the Rules framed thereunder proposing to determine the turnover on best judgment basis having rejected the turnover returned by the assessee. The assessee sent him his reply opposing the proposal. The same is produced along with the writ petition as annexure "A". The explanation offered against the proposal was rejected by the officer and he proceeded to assess the taxable turnover of the assessee under section 5 as well as section 6 as he was carrying on a composite business of running restaurant as well as coffee products sales depot. Aggrieved by such assessment based on best judgment, he filed an appeal before the Deputy Commissioner of Commercial Taxes. The appeal came to be dismissed. Further appeal preferred before the Karnataka Appellate Tribunal also came to be dismissed. Therefore, the present revision petition in this Court, inter alia, contending that on the facts and in the circumstances of the case, making an estimate of the turnover of the sales in the restaurant on the basis of the purchases of various foodgrains and other raw materials made was not a sound basis to make an estimate. Mr. B. V. Katageri, learned counsel for the petitioner, drew our attention to the decision of this Court in the case of Narayanappa v. State of Mysore [1962] 13 STC 993. That was also a case of estimating the profits accruing from carrying on business of a hotel or a restaurant. The particular passage on which the learned counsel relied upon is to be found at page 995 and it reads as follow : "The Commercial Tax Officer found that in the accounts of another hotel of the petitioner every item of sale was entered but they did not contain an accurate record of the purchases. He therefore rejected the accounts and made an estimate. He therefore rejected the accounts and made an estimate. The court held that the turnover of the petitioner was the aggregate of the sales in the hotel and if everyone of those sales was recorded in the accounts, it was immaterial that some purchases not forming part of his taxable turnover, had not been accurately recorded in the accounts. Therefore the turnover declared by the petitioner was his real turnover." The proposition notice in this case, which we have perused in the records produced, disclose different set of facts. Assessee was clearly informed that he had not maintained proper accounts, that he had not adhered to the normal pattern of issuing demands in both original and duplicate, he had not entered many purchases of commodities used in the hotel business in the relevant register. It was in that circumstance that the establishment of the assessee was visited by the Commercial Tax Officer along with the officer of the intelligence section and on such dates of inspection, stocks were verified and the stock purchased at subsequent date with reference to the stock found at an earlier date was taken notice of as the possible consumption in the running of the business of the restaurant and on that basis annual consumption of the commodities purchased in that behalf on monthly basis was estimated and disclosed to the assessee as the basis for determining the turnover. In the very same case on which the learned counsel relied upon, i.e., in Narayanappa's case [1962] 13 STC 993 (Mys), the court held that adopting a formula that 5 1/2 times establishment charges would be the total turnover of that establishment cannot be said to be bad as long as that method of computing the turnover had been disclosed to the assessee in the proposition notice with opportunity to meet the case. That case did not rule that that was the only formula by which the total turnover should be determined in the absence of proper accounts or in the case wherein return was not accepted. All that this Court ruled in Narayanappa's case [1962] 13 STC 993 was that whatever method the assessing authority proposed to adopt in determining the turnover by not accepting the turnover, that method should be disclosed to the assessee so that he may offer his comments about the correctness or otherwise of the method adopted. All that this Court ruled in Narayanappa's case [1962] 13 STC 993 was that whatever method the assessing authority proposed to adopt in determining the turnover by not accepting the turnover, that method should be disclosed to the assessee so that he may offer his comments about the correctness or otherwise of the method adopted. We found from the records that as such nothing had been done in the entire explanation offered. The petitioner had not met the case made out by the assessing authority. He proceeded to explain away everything stating that he was an honest man and the charge in the proposition notice was that he had not maintained proper accounts as is customary in the particular business or profession carried on by the assessee. In that view of the matter, the decision relied upon by the learned counsel in Narayanappa's case [1962] 13 STC 993 (Mys) is against him. Therefore, we must reject the contention that there has been any irregularity in the method adopted by the assessing authority in as much as the consumption of various items of food grains and other commodities used in the restaurant business in a given period would certainly form a rational basis to determine the possible turnover of that establishment. It was next brought to our notice that certain additions made by the assessing authority in the sum of Rs. 1,000 was not justified having regard to the decision of this Court in the case of A. G. Inamdar v. State of Karnataka disposed of on 2nd day of December, 1983, by a Division of this Court in S.T.R.P. Nos. 22 and 23 of 1983, In the said decision, no doubt, there is an observation that certain additions made by the assessing officer in the sum of Rs. 8,000 and 1,000 towards the accounts for each year was not justified when the formula of 5 1/2 times establishment expenses was applied to determine the total turnover, on the facts and circumstances of that case. Since that formula for determining the turnover or estimating the turnover was not adopted, and method adopted is different, purchase value of certain goods found in the premises could certainly be added for the purpose of determining purchase turnover for the purpose of section 6 of the Act. Since that formula for determining the turnover or estimating the turnover was not adopted, and method adopted is different, purchase value of certain goods found in the premises could certainly be added for the purpose of determining purchase turnover for the purpose of section 6 of the Act. In that view of the matter, on facts the case is distinguishable from the case of Inamdar (S.T.R.P. Nos. 22 and 23 of 1983 decided on 2nd December, 1983 - Karnataka High Court) and therefore, there is no merit in the contention advanced by Mr. B. V. Katageri. For the reasons we have given, there is no merit in the revision petition. It is rejected. Petition dismissed.