MARY ANOTONY Vs. STATE OF KERALA

JUDGEMENT

(1.) The dispute arising in both the revision cases is against the addition to the turnover made in the sales tax assessment of the petitioners, confirmed by the Tribunal. While the petitioner in T.R.C. No. 237 of 1999 was a dealer in arrack and toddy during the relevant year, the petitioner in T.R.C. No. 392 of 1998 was engaged in retail sale of Indian Made Foreign Liquor in the bar hotel. In both the cases, there was an inspection by the intelligence Wing of the Sales Tax Department in the business premises of both the petitioners during the relevant year and in the course of inspection, variation of physical stock with accounts was noticed. Both the petitioners admitted the incorrectness and incompleteness of the accounts and compounded the offence by paying the compounding fee and avoided prosecution. While the compounding fee paid by the petitioner in T.R.C. No. 237 of 1999 for the assessment year 1988-89 was Rs. 44,300/- the compounding fee paid by the petitioner in T.R.C. No. 392 of 1998 was only Rs. 500/-.

(2.) Since both the petitioners admitted non-maintenance of proper accounts in the course of inspection and paid compounding fee, the assessing officer rejected the books of accounts and estimated the sales turnover making certain additions. In both the cases, successive appeals before the two appellate authorities including the Tribunal led to reduction in the turnover and consequently reduction in tax liability. We do not find any question of law arising from the order of the Tribunal because the Tribunal has only modified the turnover fixed by the first Appellate Authority.

(3.) However, the petitioners contend that by virtue of the decision of this Court in Lovely Thomas v. State of Kerala,113 STC 505 (T.R.C. Nos. 47 and 48 of 1996) which was confirmed by the Supreme Court by a decision in S.L.P., no addition to the turnover could be made unless the Department establishes the actual unaccounted purchase and sale of liquor by the petitioners. The revision petitioners were once referred to Full Bench and by judgment dated 22.3.2000, the Full Bench dismissed the T.R.Cs. holding that the position stated by this Court in Lovely Thomas s case is not acceptable. However, the petitioners filed review petition before the Full Bench stating that the Division Bench judgment was confirmed by the Supreme Court dismissing the appeal filed by the State before it and therefore, the Division Bench decision cannot be overruled. The review petitions were disposed of by the Full Bench deleting that part of Full Bench judgment dealing with the correctness or otherwise of the decision of the Court in Lovely Thomas s case (referred above). Thereafter, the Full Bench remitted the T.R.Cs. for decision by the Division Bench.