C O DEVASSY Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS batch of 18 tax revision cases are filed by different dealers, who are assessee under the Kerala General Sales Tax Act, 1963. They relate to the assessment year 1984-85. Except in T. R. C. No. 124 of 1990 and T. R. C. No. 151 of 1990, the revision-petitioners/assessees were the appellants before the Sales Tax Appellate Tribunal. T. R. C. No. 124 of 1990 and T. R. C. No. 151 of 1990, revisions filed by the assessees, arise out of Tribunal Appeals Nos. 280 of 1987 and 513 of 1988 - appeals filed by the Revenue before the Sales Tax Appellate Tribunal. The revision-petitioners/assessees are all dealers in arecanuts in Kokkalai market in Thrissur District. The returns submitted by them were rejected by the assessing authority holding that the purchases were undervalued with a view to lessening tax liability. The assessments were completed on best judgment basis adopting the average market rate of the goods as gathered by the assessing authority. In a few cases, the assessing authority invoked section 17 (3) of the Kerala General Sales Tax Act. In most of the cases, action was initiated under section 19b of the Act. The assessments so made were taken in appeal before the Appellate Assistant Commissioner. He upheld the finding of the assessing authority that there was undervaluation. But, he reduced the rate adopted by the assessing authority in a few cases. The assessees filed appeals before the Sales Tax Appellate Tribunal and sought total deletion of the estimates made by the authorities below. The Revenue filed a few appeals, in cases where the Appellate Assistant Commissioner reduced the rates adopted by the assessing authority, and sought restoration of the assessment orders as a whole in those cases. Before the Sales Tax Appellate Tribunal much focus was laid on section 19b of the Act and the assessments were sought to be sustained placing reliance on the said section.

(2.) THE Appellate Tribunal considered the appeals filed by the assessees as well as by the Revenue and passed a common order dated 1st December, 1989. Before the Appellate Tribunal Shri A. U. Yacob, Deputy Director, Department of Economics and Statistics. Thrissur, was examined. THE points that arose for consideration were dealt with generally by the Appellate Tribunal. THE Appellate Tribunal held that there is compliance of section 17 (3) as also section 19b of the Kerala General Sales Tax Act. THEre was no independent consideration of the cases, wherein section 17 (3) of the Act alone was invoked or cases in which section 19b of the Act alone was invoked. THE Appellate Tribunal upheld the best judgment assessments made by the assessing authority in toto, and to that extent, reversed the modifications ordered by the Appellate Assistant Commissioner, in a few cases. It is thereafter, the 18 assessees have filed the above tax revision cases assailing the common order passed by the Appellate Tribunal dated 1st December 1989.

(3.) THE assessees have got a specific case that cured arecanut shandy in Kokkalai market is held only on every Tuesday. Mr. A. U. Yacob, Deputy Director, Department of Economics and Statistics, Thrissur, who was examined before the Sales Tax Appellate Tribunal, has categorically stated that the Price Inspectors gathered the information only on one day in a week, i. e. , on Friday. To a specific question, as to whether he could dispute the suggestion that in Thrissur cured arecanut shandy is held on every Tuesday, he stated that he does not know. He did not dispute it. We are highlighting the above aspect only to show that whereas according to the various dealers cured arecanut shandy is held on every Tuesday and so the market price of arecanut could normally be collected only on such days, it has come out in evidence that the details gathered by the District Statistical Officer, Thrissur, is only on the basis of enquiries made by the Price Inspectors, on every Friday. If the shandy of cured arecanut is not held on Fridays, how far the details regarding the price gathered on that day will be relevant or helpful, is of considerable importance. Moreover, when the very reliability of the figures gathered by the Sales Tax Officer from the Statistical Department is questioned, the person who originally gathered the information could have been examined, or at least, the basic data like the reports furnished by them showing the particular persons or places from which the prices were ascertained, the dates on which they were ascertained and such other matters which formed the basic data to submit the reports by the various Price Inspectors, could have been ascertained and perused. No attempt was made on this score. THE deposition of Mr. A. U. Yacob, Deputy Director, Department of Economics and Statistics, Thrissur, would show that such records are available. Even so, none of the above details were placed before the Tribunal. THE deposition of Shri A. U. Yacob, recorded by the Appellate Tribunal, was placed before us. We are left with the impression that he is not sure about the peculiarity of arecanut trade in Kokkalai market, as to how and in what manner and from whom the Price Inspectors gathered the details, the office records maintained in that connection, etc. THE deposition was recorded on 7th August, 1989, which is available at pages 281 to 287 of the files in T. A. No. 340 of 1987 (T. R. C. No. 134 of 1990 ). THE evidence of Shri A. U. Yacob, Deputy Director, Department of Economics and Statistics is not properly recorded in conformity with regulation No. 48 of the Kerala Sales Tax Appellate Tribunal Regulations, 1966. Regulation No. 48 aforesaid deals with fresh evidence in appeal. Regulation No. 48 (1), (3) and (7), which are relevant for our purpose, are as follows : " 48. Fresh evidence in appeal.- (1) THE parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Tribunal, but if, (a) the authority, from whose order the appeal is preferred, has refused to admit evidence which ought to have been admitted; (b) the party seeking to adduce additional evidence satisfies the Tribunal that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time the order under appeal was passed; or (c) the Tribunal requires any document to be produced or any witness to be examined to enable it to decide the case or for any other substantial cause; the Tribunal may allow such evidence or document to be produced or witness to be examined. . . . . . . . . . . . . . (3) Where additional evidence is allowed or directed to be produced, the Tribunal shall record the reasons for its admission and shall specify the points to which the evidence is to be confined. . . . . . . . . . . . . . . (7) THE evidence of every witness examined before the Tribunal shall be taken down in writing by or in the presence and under the personal direction and superintendence of the Tribunal. " From the papers produced before us, it is not evident that the Tribunal has recorded reasons for the admission of additional evidence; nor has it specified the points to which the evidence is to be confined, as is required by regulation No. 48 (3 ). What is more, the witness alone has signed in the document, at page 287. THEre is no endorsement in the records to show that the evidence of this witness was taken down in writing by or in the presence and under the personal direction and superintendence of the Tribunal. Such an endorsement is required under regulation No. 48 (7 ). THE absence of such an endorsement is a serious irregularity. We are of the view that the evidence has not been recorded in accordance with law. No reliance could be placed on such a recorded deposition. We hold so.