JOSEPH MICHAEL AND BRORS Vs. STATE OF KERALA

JUDGEMENT

(1.) THE revision-petitioner is a limited company. It is a dealer in Indian made foreign liquor and beer at S. D. Road, Ernakulam. THEy were agents for M/s. Herbertsons Ltd. , manufacturers of Indian made foreign liquor and beer. We are concerned with the assessment year 1979-80. THE assessment was made originally to the best of judgment on March 18, 1982. THE assessment was reopened under section 19 of the Kerala General Sales Tax Act, 1963 and an order was passed in those proceedings on June 12, 1985. Both the above assessment orders were taken in appeals before the Appellate Assistant Commissioner, who disposed of the appeals by a common order dated December 6, 1985. THE Appellate Assistant Commissioner confirmed the inclusion of the sale proceeds of motor car and purchase turnover of cinnamon leaves in the taxable turnover of the assessee. With regard to other aspects, there was an order of remit. A revised assessment order was passed after the remit by the assessing authority on April 18, 1989. THE assessee filed an appeal before the Appellate Assistant Commissioner. THE assessment order was affirmed by order dated December 13, 1989. THE matter was taken in further appeal before the Sales Tax Appellate Tribunal. Two questions were posed for consideration before the Sales Tax Appellate Tribunal. THE first question was regarding the inclusion of the sale proceeds of motor car and purchase turnover of cinnamon leaves in the taxable turnover of the assessee. THE Appellate Tribunal held that the matter is concluded by the earlier appellate order passed in the appeals - S. T. A. Nos. 399/82 and 324/85 - dated December 6, 1985. From the said order the assessee did not file a further appeal before the Tribunal. So, the decision by the first appellate authority permitting the inclusion of the sale proceeds of motor car and purchase turnover of cinnamon leaves in the taxable turnover of the assessee stood affirmed and it cannot be assailed in proceedings against the revised assessment order. It was held that the assessee is precluded from putting forward that plea, since the decision on those aspects had become final by the appellate order passed by the first appellate authority dated December 6, 1985. THE only other aspect argued before the Sales Tax Appellate Tribunal was that the assessee was entitled to forwarding charges collected by it from M/s. Michaels. It was pleaded that there was an agreement between the assessee and M/s. Michaels on April 1, 1989, to sell Indian made foreign liquor and beer to M/s. Michaels. THE assessee had canvassed orders for M/s. Michaels and it was paid a commission therefor. THE assessee had also agreed to transport goods to the customers of M/s. Michaels and on that ground it had received forwarding charges. THE Sales Tax Appellate Tribunal doubted the genuineness of the agreement pleaded and also held that from the records and other statements and explanations filed by the assessee it is not evident that any services were rendered by the assessee to M/s. Michaels as pleaded. In this view of the matter, the inclusion of the forwarding charges in the taxable turnover was held justified. THE Appellate Tribunal held that the forwarding charges collected by the assessee will form part of the taxable turnover. Aggrieved by the order passed by the Sales Tax Appellate Tribunal, dated September 28, 1991, the assessee has come up in revision.

(2.) WE heard counsel for the assessee/revision-petitioner as also counsel for the respondent/revenue - Senior Government Pleader Mr. V. C. James.

(3.) IN the light of the above findings of fact, the conclusion of the Appellate Tribunal, that the forwarding charges collected by the assessee will form part of its taxable turnover, is sustainable and valid in law. The second question raised before us is answered against the revision-petitioner/assessee.