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TMI Blog1999 (10) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... e (hereinafter referred to as "Tribunal") disposed of eight appeals relating to assessment years 1984-85 and 1986-87 onwards up to 1992-93. Assessee is a private limited company incorporated under Companies Act, 1956. Its business is mainly in arrack and "Indian Made Foreign Liquor" (in short "IMFL") as an abkari contractor. Purchases are made mainly from distilleries within the State on basis of permits issued by Excise Department. It is registered as "dealer" under the Act on the files of Sales Tax Officer (Reserve I), Ist Circle, Kannur. During inspections carried out in business premises of assessee, certain discrepancies were noticed which were taken note of by assessing officer in rejecting turnovers returned and enhancements were m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee in support of the applications submitted that though relief has been granted to assessee by Tribunal, it has not taken note of the fact that for minor discrepancies in stock, there cannot be any enhancement particularly when stock variation was petty compared to large turnover. So far as assessment year 1989-90 is concerned, it is submitted that all relevant records were before Tribunal and, therefore, it ought not have remanded matter to assessing officer for fresh assessment. For assessment year 1988-89, it is submitted that there was no cross appeal or independent appeal by Revenue. Therefore, it was impermissible to effect enhancement. Reliance is placed on the decision of apex Court in the State of Kerala v. Vijaya Stores [1978] 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kground of section 5(5) of the Act. 4.. So far as question whether books of accounts can be rejected on the ground of shortages, no hard and fast rule of universal application can be laid down. It all depends upon the quantum of shortage, the volume and magnitude of transaction involved, the nature of articles dealt with and such other relevant factors. It can in a given case be said that on account of minimal shortage, books of accounts cannot be rejected. If shortage is high compared to turnover effected, it can certainly be a ground for rejection of accounts. But this question is really of academic interest in the present cases as there was not only shortage but also excess. Learned counsel for the assessee urged that shortages are to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, it is inevitable that there is some guess-work. The assessing authority while making the "best judgment" assessment, no doubt, should arrive at its conclusion without any bias and/or rational basis. If the estimate made by the assessing authority is a bona fide estimate and is based on a rational basis, the fact that there is no good proof in support of that estimate is immaterial. If it is concluded that the accounts maintained by the assessee were rightly rejected, the next question that arises for consideration is whether the basis adopted in estimating the turnover has a reasonable nexus with the estimate made. If the basis adopted is held to be a relevant basis, the estimate made by the assessing authority cannot be disturbed even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee that there was no such concession. Learned counsel for the Revenue objected to such conduct of assessee stating that Tribunal has categorically observed about the concession and same was made in view of the clear existence of provision which had not been looked into by the lower authorities. When a plea is taken that there was no concession as indicated in the order, the proper course for the affected party is to move the concerned court of Tribunal which had recorded the concession. That position has been eloquently stated by the apex Court in State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249. We, therefore, feel that it would be appropriate if the Tribunal considers the matter afresh so far as this particular angle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any packing materials, the rate of tax and the point of levy applicable to such containers or packing materials, as the case may be, shall, whether the price of the containers or the packing materials is charged separately or not be the same as those applicable to goods contained or packed, and in determining turnover of the goods, the turnover in respect of the containers or packing materials shall be included therein." Sl. No. Descroption of goods Point of levy Rate of tax 156 All other goods not coming under any entry in any of the Schedules. At the point of first sale in the State by a dealer who is liable to tax under section 5. 8 per cent. IMFL had suffered tax as contained in the containers. There is no distinct sale of liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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