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2001 DIGILAW 135 (KER)

Mary Antony v. State of Kerala

2001-02-28

A.LEKSHMIKUTTY, S.SANKARASUBBAN

body2001
Judgment :- S. Sankarasubban, J. Assessee is the revision petitioner. The assessment year is 1992-93. Annexure A is the assessment order. The Assessing Authority has completed the assessment by estimating the turnover at Rs. 12,09,090 against a conceded turnover of Rs. 2,12,174.50. 2. The petitioner was an abkari contractor and he had bid shops A.S. Nos. 25,29 and 32 of the Puthupally Excise Group. During the year 1992-93 the shops were allotted by fixing monthly quota of arrack for the above shops and arrack was supplied from Travancore Sugars and Chemicals, a Government Distillery. For the year 1992-93, the petitioner purchased 3560 litres of arrack from the Government Distillery and sold at Rs. 2,12,174.50. In the purchase point, the petitioner paid 50 per cent tax and the balance 12.5 per cent for the sales turnover returned. The Assessing Authority has pointed out that no books of accounts were available at the time of inspection on three shops on the very same date, viz., 27th August 1992. For the non-availability of books of accounts, the Assessing Authority has estimated the turnover at Rs. 12,09,090 being 5.5 times of the turnover returned. Another defect pointed out by the Assessing Authority was that there was no evidence for the receipt of arrack. The entire purchase was from Travancore Sugars and Chemicals, Tiruvalla. The purchase of arrack was supported by the purchase bills. 3. Against the order of the Assessing Authority, the petitioner preferred an appeal before the First Appellate Authority. The First Appellate Authority though convinced about the fact that no quantum of suppression was fixed by the Intelligence Officer or by the Assessing Authority, did not interfere with the basis adopted by the Assessing Authority for estimating the turnover. Annexure B is the order. Against that, the petitioner preferred a Second Appeal. The Tribunal dismissed the appeal on the ground that against the order of the Assessing Authority, the State has filed an appeal and that appeal has been dismissed earlier. According to the Tribunal, against the order of the Assessing Authority, an appeal was filed by the State as T.A. No. 143 of 1995 and the Tribunal confirmed the order of the Appellate Assistant Commissioner. The Tribunal took the view that the present appeal cannot be entertained. According to the Tribunal, against the order of the Assessing Authority, an appeal was filed by the State as T.A. No. 143 of 1995 and the Tribunal confirmed the order of the Appellate Assistant Commissioner. The Tribunal took the view that the present appeal cannot be entertained. The order of the Tribunal states as follows: "On going through the connected records, it is seen that the State has filed an appeal before this Tribunal against the modifications ordered by the Appellate Assistant Commissioner for the year 1992-93, i.e., the order under impugned in this appeal. The Tribunal, as per its Order No. T.A. 143/95, dated 6th June 1997, confirmed the order of the Appellate Assistant Commissioner and dismissed the State Appeal after considering all aspects of the case. 4. It is seen that the State filed an appeal against the order of the Assessing Authority, because the Assessing Authority reduced the addition to 50 per cent. That appeal was considered by the Tribunal. But the present appeal filed by the assessee is against the additions made. The question is whether the Tribunal was right in dismissing the appeal. 5. Learned counsel for the petitioner contended that the subject matter of the two appeals was different. The State filed the appeal against that portion of the Assessing Authority's order by which the addition was reduced. The petitioner filed the appeal on the ground that there was no suppression and hence, there should not be any addition. But unfortunately, the appeal filed by the assessee was not posted along with the appeal filed by the State. The appeal filed by the State was dismissed confirming the order of the Assessing Authority. When the appeal filed by the assessee came up for consideration, the bench took the view that since the decision of the Assessing Authority has been confirmed by the Tribunal, that appeal cannot be entertained. Learned counsel for the petitioner submitted that the subject matter, of the. two appeal?, is different. Hence, there cannot be any res judicata. When the appeal filed by the assessee came up for consideration, the bench took the view that since the decision of the Assessing Authority has been confirmed by the Tribunal, that appeal cannot be entertained. Learned counsel for the petitioner submitted that the subject matter, of the. two appeal?, is different. Hence, there cannot be any res judicata. Learned counsel brought to our notice S.39 of the Kerala General Sales Tax Act, which states that any officer empowered by the Government in this behalf or any other person objecting to an order passed by the Appellate Assistant Commissioner under sub-s.(3) of S.34 and any person objecting to an order passed by the Deputy Commissioner under sub-s.(1) of S.35 and any person objecting to an order passed by the Inspecting Assistant Commissioner under clause (c) of sub-s.(4) of S.28 may, within a period of sixty days from the date on which the order was served on him in the manner prescribed, appeal against such order of the Appellate Tribunal. This shows that right is given to both parties to file appeal. If as a matter of fact, in the judgment of the Tribunal against one party the entire thing has been discussed, probably it may be difficult to contend that there is no res judicata. But in this case, what has happened is that the State's only objection was against the reduction of the addition made by the Assessing Authority, because the other points were in favour of the State. 6. A similar question arose before the Allahabad High Court in Jamuna Das Ram Kishan v. Commr. of Sales Tax, Uttar Pradesh, 38 STC 443. In the above decision, it is stated as follows: "S.10 does not contain any provision which destroys the right conferred by S.10(2) of filing a revision in case the revision application of one party has been disposed of. In the absence of such a provision, it would not be appropriate to apply the theory of merger and hold that as soon as a revision application of one of the parties is disposed of, the other party loses the statutory right conferred on him by S.10(2) to file a revision within the period prescribed by S.10(6)". The question of res judicata may arise only if the subject matter which is raised in the present appeal is also the same. The question of res judicata may arise only if the subject matter which is raised in the present appeal is also the same. In the previous appeal filed by the State, Learned counsel for the Revenue brought to our notice a decision in Kunhayammed & Ors. v. State of Kerala & Ann (2000) 6 SCC 359. The above decision is regarding the doctrine of merger. Here in this case, we don't think, the doctrine of merger will apply, because what the petitioner wants is that his appeal should be heard as it contains points other than that raised in the appeal by the State. Admittedly, the question whether there was suppression of materials is not considered by the Authority. It is not seen from the judgment of the Tribunal that the original order of the Assessing Authority was produced before the Court. Whatever that may be, according to us, when a person has filed an appeal that appeal has to be heard and it cannot be said that another person has filed appeal and that was dismissed. The appeal filed by the assessee has also to be entertained and heard. We don't agree with the argument of the learned counsel for the respondent and according to us, it cannot be said that the present appeal cannot be heard in view of the disposal of S.T.A. 196 of 1994. 7. In the above view of the matter, we set aside the judgment of the Tribunal. We direct the Tribunal to hear the appeal, T.A. No. 156 of 1995. T.R.C. is disposed of as above.