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TMI Blog2008 (7) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the assessing authority has proceeded to accept the check-post declarations and has completed the best judgment assessment and while doing so, has made certain additions towards the probable omissions of sales and purchases. While completing the best judgment assessment, the basis that is adopted by the assessing authority is the transactions reflected in the check-post declarations. It is on rational basis that a best judgment assessment could be passed. The best judgment assessment passed by the assessing authority cannot be replaced by this court by yet another best judgment assessment unless the said assessment is wholly arbitrary and whimsical. Against assessee. - 125 of 2004 - - - Dated:- 9-7-2008 - DATTU H.L. C.J. AND BASHEER A.K. , JJ. ORDER:- The order of the court was made by H.L. DATTU C.J. A Division Bench of this court had doubted the correctness or otherwise of the declaration of law made this court in Surya Agencies v. State of Kerala [2008] 11 VST 419; [2004] 12 KTR 215 and C.O. Varghese v. State of Kerala [2008] 11 VST 149; [2004] 12 KTR 528 and, accordingly, had referred the matter to a Full Bench to furnish its opinion on the question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailed reply and in that had contended that he had not received any goods from the consignors noted in the check-post declarations and, further, had sought an opportunity to cross-examine the consignors. Apart from that, the assessee had not produced any other evidence in support of its denial of the transactions reflected in the check-post declarations. The assessing authority, after considering the reply filed by the petitioner and based on the check-post declarations, has proceeded to complete the best judgment assessment and, in that, had made certain additions to the conceded total and taxable turnover and, accordingly, had quantified the tax liability. Aggrieved by the order so passed by the assessing authority, the assessee was before the first appellate authority. The appellate authority had modified the order passed by the assessing authority, however, had not altered or modified the additions made by the assessing authority based on the check-post declarations. The order so passed by the first appellate authority is confirmed by the Tribunal. The assessee is before us in this revision petition questioning the correctness or otherwise of the order passed by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tty v. State of Karnataka [2008] 13 VST 328 (Sales Tax Revision Petition No. 32 of 2005 decided on June 23, 2005). Before we advert to the contentions canvassed by Sri Jose Joseph, in our opinion, it would be useful to refer to certain observations made by a Bench of this court in M.S.E.S. Attarwala's case [2004] 3 KLT 105. The court, at paragraph 6, has observed as under: Of course, it may be argued that considering the limited sphere or resources within which a dealer who is a private party can successfully produce or cause the production of the alleged seller of goods or his agents situated beyond the territorial limits of the State and confront him with the check-post declarations, the authorities under the Act should render all effective help within their powers to the assessee to make use of the opportunity to adduce evidence in rebuttal including the cross-examination of the declarant or other persons connected with the declaration or invoice and shall not adopt any indifferent or lethargic attitude by sitting with folded hands. We need not go into those aspects in this case because there is nothing on record to show that the assessee had made any attempt to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. In our view, what is contemplated under the Act, is to provide an opportunity of personal hearing and to adduce evidence in support of the defence to a person, who is alleged to have violated the provisions of the Act. It is for that person to produce the evidence by obtaining copies of the provisional assessment orders passed against the consignors or the consignees that the goods for which transit passes have been issued are actually taken outside the State. It is not expected of the Checkpost Officer to collect evidence from various other authorities to sustain the show-cause notice issued by him. The cardinal rule in this regard is, service of notice is a condition precedent for making an order either to assess or to levy penalty or interest, etc. The person against whom the show-cause notice is issued is in law entitled to rebut the allegations made against him, if he so chooses, by producing any evidence, which is in his possession. This would satisfy the requirement of notice and fair hearing. In view of this, in our view, the contention canvassed by the learned counsel for the petitioner that fair opportunity of hearing was not afforded to the petitioner before levying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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