9911796707
TMI Blog2009 (6) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-95 on July 15, 1995 on check of accounts of the dealer and accepting the nil returns submitted by the dealer. However, that assessment is a bald and cryptic order. The assessing authority did not even refer to the F forms which were by then filed by the appellant and no finding was recorded as regards the correctness of the F forms filed under section 6A(1) of the CST Act read with the Rules. The appellant was assessed to tax under the Kerala General Sales Tax Act, 1963 for the same year in respect of the sales effected through its Palakkad branch. A turnover of Rs. 3,82,67,310 was assessed to tax. While so, on the basis of inspection of the business premises on February 2, 1995 of the appellant and its branch at Palakkad by the enforcement officials, the same assessing officer initiated reassessment proceedings and brought to tax the entire turnover relating to stock transfers to the branch under the CST Act. In other words, the alleged stock transfers were held to be direct inter-State sales to the buyers in Palakkad. It may be noted at this juncture that even by the date of original assessment made as late as July 1999, the inspection report of the enforcement wing must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed by him . The Tribunal referred to the observation in the reassessment order that the records/documents in connection with stock transfer were not produced at the time of inspection, nor were they made available on a later date to prove genuineness of stock transfer . This statement in the reassessment order is only an extract from the inspection report of the enforcement wing. What is relevant is whether the appellant failed to produce the records/documents at the time of assessment or reassessment. The failure if any to produce all the records before the enforcement wing officials is no ground to justify reassessment. In the reassessment order also, the assessing authority observed that F forms and other relevant documents were not filed by the date of the order. Both the Tribunal and the assessing officer proceeded on a wrong assumption that the applicant did not file F forms. As rightly stated by the learned counsel for the appellant, the F forms for the relevant four months are found in the TNGST file, though not in the CST file and they were filed much earlier to the original assessment. Both files were placed before us by the learned counsel for the State of Tami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not permissible either on mere change of opinion or on the basis of discovery of new material. The only limited grounds on which the assessment can be reopened are fraud and misrepresentation including concealment of material facts. As the assessing authority did not make any noting in the original assessment order about the F forms and their correctness, the dealerappellant cannot possibly invoke the benefit of the deeming provision. Ashok Leyland's case [2004] 134 STC 473 (SC) does not therefore come to the aid of the appellant. It cannot be said that the reassessment is without jurisdiction. At the same time, the filing of F forms by the dealer absolves him of the responsibility to discharge the burden of proof. It is then for the assessing authority to make an enquiry as to the genuineness and correctness of the F forms and record a finding. In the absence of a finding to this effect in favour of the assessee, the assessing authority can act, after the original assessment, on the evidence or material unearthed which are suggestive of inter-State sales. Is there any such material in the present case to nullify the effect of the F forms filed by way of discharging t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the assessing officer that the appellant dodged to produce the documents and account books in spite of issuing a notice. A reading of the reassessment order would show that the assessing authority without examining the relevant aspects independently and without reaching conclusions of her own merely extracted whatever was stated by the officials of the enforcement wing. The detailed explanation of the assessee was brushed aside. Evidently the assessing authority felt bound to faithfully implement the report of the Enforcement Officers without realizing that it was discharging quasi-judicial functions. That is the tenor of reassessment order. The Tribunal, as already noted, proceeded on the wrong assumption that the F forms and other documents were not filed and failed to consider the other relevant aspects adverted to in the reassessment order. Notwithstanding the above errors and deficiencies in the order of reassessment and the appellate order of the Tribunal, we consider it appropriate to refer to relevant facts that were highlighted in the inspection report of the enforcement wing and repeated by the assessing officer. One is about the lack of storage facility at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant's branch at Palakkad, the goods were actually delivered at Trichur near Ernakulam next day directly to the dealer by name M/s. Jaihind Traders, Ernakulam. The next day the weighment was done at Ollur (near Ernakulam) before the delivery of goods. Above all, when there was a shortage of goods, the dealer, Jaihind Traders, directly entered into correspondence with the head office at Salem but not with the branch office which allegedly sold the goods. Thus, the so-called stock transfer was found to be fictitious. The appellant gave a peculiar explanation that the lorry first came to its branch at Palakkad and after the goods were actually sold to Jaihind Traders, the same lorry went to the buyer's place at Ernakulam and unloaded the goods there. The explanation, on the face of it, is not probable. There was no need for the buyer at Ernakulam to go all the way to Palakkad to take delivery of the goods and then move them by the same lorry to his place of business at Ernakulam. No reasonable businessman would like to take delivery of the goods readily available in the market at a different place, bearing additional freight charges. Moreover, the appellant did not expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he customers would have collected the goods from the lorry and moved them to their own places after making necessary payment to the branch office. When such possibility is there, it is not just and proper to brand all the sales as inter-State sales especially when no direct evidence such as prior purchase orders and the communication thereof to the head office was found. A realistic and balanced view has to be taken keeping in view the aforesaid factors pro and contra the appellant's claim. Viewed in the above background, irrespective of the faulty reasoning of the Tribunal, it is reasonable to draw an inference that the appellant did effect inter-State sales directly in the guise of stock transfers to some extent, although, the large majority of the transactions shall be regarded as stock transfers. At any rate, there is no clinching evidence to hold otherwise. Some estimate has to be made to fix the percentage of turnover in respect of which the appellant's claim can be allowed or rejected. At this distance of time, we are not inclined to remand the matter for this purpose. We consider it reasonable to fix the turnover attributable to direct interState sales as 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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