K K ISMAIL Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE three tax revision cases are by the same assessee in respect of the assessment for three different assessment years. T. R. C. No. 150 of 1977 is in respect of the year 1968-69, T. R. C. No. 156 of 1977 relates to the assessment year 1966-67 and T. R. C. No. 157 of 1977 relates to the assessment year 1967-68. For the sake of convenience, we may notice the facts in T. R. C. 157 of 1977.

(2.) THE assessee claimed to be a dealer in iron scraps, eligible to be assessed at the general rate of 3 per cent. under section 5 of the Act. He was so assessed by the Sales Tax Officer at the general rate. But the successor of that officer took the view that the assessment had to be made under entry 8 of the First Schedule of the Kerala General Sales Tax Act, as motor spare parts, and the tax had to be at the rate at 12 per cent. THE assessment was accordingly revised under section 19 (2) of the Act after notice to the assessee. On appeal by the assessee, the Appellate Assistant Commissioner allowed the appeal and set aside the assessment. On further appeal by the revenue, the Sales Tax Appellate Tribunal set aside the judgment of the Commissioner and restored that of the Sales Tax Officer, thereby maintaining the revised assessment under section 19 of the Act. THE validity of this order has been challenged in this revision. THE Sales Tax Officer in the first order of assessment stated : " I have examined all these certificates and also verified the sale bills, etc. , again. I have also made personal enquiries regarding the articles purchased and sold by the dealer. THE facts stated by him in his reply dated 24th January, 1969, are found to be correct. THE article purchased and sold are only old iron and motor scraps which are taxable at 3 per cent. and it will not come within the ambit of item 8 of the First Schedule of the Kerala General Sales Tax Act, 1963. So the entire turnover disclosed by the accounts will be taxed at 3 per cent. accepting the explanation offered by the dealer. " In revising the assessment under section 19 of the Act, the successor officer stated : " His accounts will speak that he has got dealings in old motor parts purchased from outside the State as well as dismantled worthless motor parts plucked out from vehicles as seen on a perusal of the invoices, etc. , produced by the assessee. He has also issued sale bulls by mentioning the name of different kinds of motor parts, No. of item, etc. , sold. THErefore, it is not fully correct to say that he has sold such articles in lot without weighing. Of course, there are such cases sold in lot as scrap iron materials; such turnover has been estimated and assessed. When his accounts show dealings of old motor parts purchased from outside the State besides useless and condemned motor parts, he cannot simply say that all his dealings are only scrap iron materials. Item 8 of Schedule I of the Act is motor parts. No mention has been made as the NEW OR OLD. THErefore, old motor parts purchased as such from outside the State will come under item 8 of Schedule I of the Act. " Whatever doubts there might be on the question as to whether the accounts had been examined by the Sales Tax Officer on the earlier occasion will stand dispelled by the order of the Appellate Assistant Commissioner, wherein he stated that the assessment for 1966-67 was completed by the Sales Tax Officer on 7th November, 1967, after due verification of the accounts; so there can be no question that the materials on the basis of which the earlier officer and the successor officer proceeded were practically, if not actually, the same.