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1998 DIGILAW 392 (KER)

N. SUKUMARAN v. STATE OF KERALA

1998-08-18

J.B.KOSHY, OM PRAKASH

body1998
JUDGMENT OM PRAKASH, C.J. – Heard counsel for the parties. 2. These two revisions are filed by the assessee since cross appeals filed by the Revenue and assessee were disposed of by the Appellate Tribunal. Both the revisions are, being disposed of by a common judgment. 3. Inspections were conducted on the business premises of the revision petitioner on August 26, 1987, October 27, 1987 and December 9, 1987. On inspection made on August 26, 1987, the Sales Tax Officer found certain discrepancies (i) that day book was not written up-to-date and the same was posted up to May 29, 1987 only, though business was conducted subsequently also; (ii) that no manufacturing account or production register as provided under rule 32(15) was maintained for "soda"; (iii) that sales of "soda" was not supported by sale bills; and (iv) that on physical verification some discrepancies were found. 4. Learned counsel for the assessee drew our attention to the discrepancy stated at item Nos. 18, 20 and 21. At item No. 18 relating to Bahadoor rum, one bottle of rum was found in excess. At item No. 20, one bottle of Buccaneer rum was found short. The submission of counsel for the assessee is that entries at items Nos. 18 and 20 got inter-changed and, therefore, the discrepancy arose. Similarly, under item No. 21, 384 nips of S.D. rum was found short and 192 pints was found excess. The submission before us is that there are two nips in one pints and that if the entry of nips and pints are read correctly, then the quantity will tally. It is also submitted that from the shortage, no adverse inference can be drawn that there was any suppression of stock on the part of the petitioner. 5. We have carefully gone through the order of the Appellate Tribunal. The Tribunal emphasised that the day book was not found to have been posted up-to-date when the inspection was made on August 26, 1987 and that for non-production of the day book on October 27, 1987, the explanation given by the petitioner was not convincing. The question for consideration is whether on such discrepancies, the Tribunal was right in restoring the order of the assessing officer making addition to the extent of 5 per cent on the taxable turnover from August 20, 1987 to March 31, 1988. The question for consideration is whether on such discrepancies, the Tribunal was right in restoring the order of the assessing officer making addition to the extent of 5 per cent on the taxable turnover from August 20, 1987 to March 31, 1988. On appeal, the 1st appellate authority reduced the addition from 5 per cent to 3 per cent on taxable turnover. It is settled legal proposition that unless there are good reasons, the Tribunal should not disturb the findings of the appellate authority. No serious error is pointed out by the Tribunal to reverse the decision of the appellate authority. Considering the explanation given by the petitioner and the nature of the discrepancies which are of trivial nature, we are of the considered view that though technically the book version of the-petitioner could be rejected as the day book was not posted up-to-date, can in no case addition at the rate of 5 per cent be sustained. On taxable turnover, we are of the view that 1 per cent addition would be quite reasonable on the facts and in the circumstances of the case. 6. Our attention was then drawn by the assessee to ground No. 11, raised in the appeal memo filed before the Tribunal, on which no finding has been recorded by the Appellate Tribunal. So far as this ground is concerned, the assessee may approach the Appellate Tribunal by way of rectification application in accordance with law. In the result, both the revisions are partly allowed reducing the addition of 5 per cent to 1 per cent on the taxable turnover for the period commencing from August 20, 1987 to March 31, 1988. Petitions allowed in part.