M APPUKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) IN this writ petition the main ground of attack that has been raised as against the order of assessment to sales tax, exhibit P-3, dated 28th March, 1960, for the assessment year 1958-59, passed by the Sales Tax Officer, Special Circle, Kozhikode, is that the assessing authority has acted arbitrarily and capriciously in adding 25% towards the so-called omission and fixing the estimate on this basis in the additional sum of Rs. 2,00,000.

(2.) THERE are also several other grounds of attack regarding the assessment order, which I do not think it necessary to go into at present.

(3.) THE objection, exhibit P-2, was received by the assessing authority on 28th March, 1960, as is evidenced by the assessment order, exhibit P-3. But on the same date, the assessing authority passed the order of assessment also. In exhibit P-3 the assessing authority again refers to the three transactions discovered from the secret account books of Pachukutty, and the officer says that those items do not find a place in the accounts of Messrs Haridas Bros. After referring to the objection filed by the petitioner and advertising to the petitioner's statement therein that he has not made any sales to Pachukutty and that he is not responsible for the books maintained by Pachukutty, the officer does not say further than this, namely, again reiterating that the secret account books detected from Pachukutty show actual transactions. As to how exactly any books of account maintained by somebody else, and much less the secret account books, which according to the department were discovered from a third party, can straightaway and without proof be utilized as against persons like the petitioner, has not been even indicated in the order of assessment. As to whether the petitioner had an opportunity to contest the correctness of the entries in those books, or as to whether the secret account books themselves have been proved by anybody appearing on behalf of Pachukutty, is not certainly clear from the assessment order. THErefore, the attack based on the order under attack, placing considerable reliance on the secret account books of Pachukutty, cannot certainly be said to be without any basis.