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TMI Blog1991 (2) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... s per order dated June 30, 1987 the Tribunal remanded the case to the assessing authority for the limited purpose of verifying the claim of the appellant regarding special discount allowed on sales, loss due to the breakage and correctness of the amount shown as excise duty paid in the accounts of the appellant and to examine whether packing charges incurred on purchases from outside the State was included in the purchase turnover. The department challenged the order of the Tribunal in Tax Revision Cases Nos. 137 and 138 of 1988 before this Court. This Court found that the Tribunal has not passed orders on two petitions and the affidavit filed by the assessee explaining the circumstances under which he was unable to produce certain books of account and sale bills before the assessing authority. Due to that procedural illegality the order of the Tribunal was set aside by this Court as per order dated June 28, 1989, without entering into the merits of the case. The Tribunal was directed to restore the appeals T.A. Nos. 1141 and 1142 of 1987 to file and to dispose of them afresh. 2.. After remand the Tribunal passed orders on interlocutory petition. That petition was allowed and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. Respondent failed to produce the books of account and the sale bills in spite of several notices issued to him. The assessing authority was therefore constrained to overrule the objections raised by the respondent in reply to the pre-assessment notice and the assessment for these years were completed more or less on the same turnover as in the original assessments. When the matter came up before the Tribunal again the respondent had produced some documents along with an interlocutory application. The Tribunal did not place much reliance on these documents and observed that the documents have little evidentiary value. Still the Tribunal placed reliance on the affidavit produced by the respondent and the reasons mentioned therein. 4.. It is strenuously contended by the learned Government Pleader that the Tribunal should not have admitted the affidavit and relied on the same in view of the specific direction contained in the earlier order of the Tribunal affording an opportunity to the respondent to produce the sale bills in order to claim deductions under rule 9(a) of the Kerala General Sales Tax Rules. The contention is that the respondent having failed to produce the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61] 42 ITR 112 (Gouri Prasad Bagaria v. Commissioner of Income-tax). In that case the Income-tax Officer declined to accept the explanation offered by the assessee in respect of an amount withdrawn. On further appeal, the Tribunal accepted that explanation and the amount was ordered to be excluded. The High Court held that there was no material before the Tribunal. On further appeal, the Supreme Court held that the Tribunal had believed the assessee's word in view of his conduct and past history and where the assessee's statement is believed, there is obviously material on which the finding is based. It was further held that the Tribunal having believed the assessee's statement, there was an end of the matter in so far as that fact was concerned, and if the finding was based upon a statement which was good material on which it could be based, no question of law really arise. In the present case the Tribunal had relied on the affidavit of the respondent and that is a material on which the finding of the Tribunal is based. That finding is a finding of fact which cannot be revised by this Court in revision, unless it is based on no material, or illegal or irrational. None of these inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whom the appellant had supplied liquor in order to ascertain whether any discount was really allowed or not. The assessing authority has not done anything in this connection. The Tribunal ultimately held that the assessing authority has no material in hand to prove that the appellant suppressed his turnover for these years. The Tribunal opined that the burden is on the department to establish their allegation that the appellant has understated the sales consideration in his books of account. That allegation was not properly established nor was any evidence adduced. The Tribunal was therefore not prepared to accept the defect pointed out as well-founded. 7.. The books of account of respondent were found to be unreliable by the Tribunal and best judgment assessment had to be resorted for both the years under appeal. The assessing authority has determined the turnover on best judgment based on the purchases effected. The Tribunal found no material to suspect the veracity of the sale price disclosed in the books of account for both the years under appeal. It is observed by the Tribunal that the assessee is at liberty to fix the selling price according to the particular nature of his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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