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1993 DIGILAW 148 (KER)

V. K. HAMEED AND COMPANY v. STATE OF KERALA.

1993-03-09

K.P.BALANARAYANA MARAR, K.S.PARIPOORNAN

body1993
JUDGMENT K. S. PARIPOORNAN, J. - The revision-petition is an assessee under the Kerala General Sales Tax Act, 1963. The respondent is the Revenue. The matter relates to the sales tax assessment of the assessee for the year 1986-87. The assessee is a dealer in gunny bags. It effected consignment sales of gunnies. The Sales Tax Officer found that the assessee made purchases from unregistered dealers. It was held that the purchase turnover from unregistered dealers should suffer tax under section 5A of the Kerala General Sales Tax Act. The consignment sales amounted to 1,77,420 numbers of empty gunnies. The purchase value of the said gunnies was estimated, after appropriate deductions, in the sum of Rs. 8,89,029.22. The purchase turnover was fixed at Rs. 13,29,340 and tax was levied. In first appeal, the Deputy Commissioner (Appeals), Kozhikode, relying on a statement filed by the assessee, held that the purchases from unregistered dealers amounted to 56/80, portion of the goods under consignment despatches and the purchases from registered dealers which resulted in consignment despatches amounted to 24/80. So, the purchases from unregistered dealers which was worked out to 56/80 of the total purchases was valued at Rs. 6,22,300 instead of Rs. 8,89,029.22. The taxable turnover was refixed. 2. The Revenue as well as the assessee felt aggrieved by the said decision of the Deputy Commissioner (Appeals). Both of them filed appeal before the Sales Tax Appellate Tribunal. The Appellate Tribunal reversed the decision of the Deputy Commissioner (Appeals) and upheld the order of the assessing authority. The appeal filed by the Revenue was allowed and the appeal filed by the assessee was dismissed. The said composite order dated May 16, 1991, is the subject-matter of revision. 3. We heard counsel. This revision is filed against a composite order dated May 16, 1991. That order was passed in two appeals (T.A. Nos. 280 and 336 of 1989). T.A. No. 280 of 1989 was filed by the assessee and T.A. No. 336 of 1989 was filed by the State. There should have been two revisions from the said composite order. Even if a combined or joint revision petition is maintainable, at least two court fee should have been remitted as for two revisions. It is not admittedly done. On this short ground, the tax revision case should be held to be not maintainable. There should have been two revisions from the said composite order. Even if a combined or joint revision petition is maintainable, at least two court fee should have been remitted as for two revisions. It is not admittedly done. On this short ground, the tax revision case should be held to be not maintainable. If at all it could be said to be maintainable only against one order. In case the revision is considered to be filed only against one of the orders, since the order passed in the appeals is a composite one, the non-filing of a revision from the other order will render the revision filed as not maintainable and barred by rule of res judicata. 4. On the merits, we find that the composite order passed by the Sales Tax Appellate Tribunal, dated May 16, 1991, is unassailable. The plea of the assessee was that it purchased gunny bags from registered dealers. This claim was not proved or substantiated by any materials or evidence. The Appellate Tribunal stated so in paragraph 5 of its order. According to the assessing authority, the purchases for entire consignment despatches were made from unregistered dealers. In dealing with the plea of the assessee, the Appellate Tribunal has categorically stated that the assessee did not produce any evidence before them to prove that the entire consignment sales were out of purchases from registered dealers. The Appellate Tribunal also found that the dealer's claim was that the accounts clearly showed the stock position, but the accounts were not produced before the Appellate Tribunal. The Appellate Tribunal concluded that the decision arrived at by the first appellate authority, stating that a portion of the purchases were made from registered dealers and it is only a portion of purchases from unregistered dealers that could be brought to tax was not based on sound data and the data given by the dealer are not believable. Again in paragraph 8 of the order, the Appellate Tribunal has categorically stated that the plea of the dealer, that the entire consignment sales of 1,77,420 numbers of empty gunnies were purchased by it from registered dealers is not proved by records and the figures supplied by the dealer are without any basis. On the basis of the above findings, the Appellate Tribunal set aside the order of the Deputy Commissioner (Appeals) and restored the order passed by the assessing authority. On the basis of the above findings, the Appellate Tribunal set aside the order of the Deputy Commissioner (Appeals) and restored the order passed by the assessing authority. 5. We are of the view of the finding of the Sales Tax Appellate Tribunal to the effect that the dealer has failed to show that the purchases make by it were made from registered dealers, is a finding of fact. The plea advanced by the assessee was not substantiated. On the other hand, it was evident that the entire consignment despatches were acquired by the assessee from unregistered dealers. On these premises, the conclusion of the Appellate Tribunal that such purchases made from unregistered dealers are exigible to purchase tax under section 5A of the Kerala General Sales Tax Act, is unassailable. 6. The order passed by the Appellate Tribunal does not disclose any error of law of merit interference in revision. The tax revision case is dismissed. No costs. Petition dismissed.