TMI Blog2008 (9) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 of 2005 is filed questioning the correctness or otherwise of the order passed by the Sales Tax Appellate Tribunal in T.A. No. 694 of 2001 dated June 16, 2004 under the provisions of the Central Sales Tax Act, 1956 and S.T. Rev. No.150 of 2005 is filed questioning the order passed by the Appellate Tribunal in T.A. No. 693 of 2001 dated July 16, 2004 under the provisions of the Kerala General Sales Tax Act, 1963. The petitioner is a registered dealer under the provisions of the Kerala General Sales Tax Act, 1963 ( the KGST Act , for short) and the Central Sales Tax Act, 1956 ( the CST Act , for short). The petitioner, a dealer in superior kerosene oil, has branch offices at Ernakulam and Pondicherry. The petitioner is borne on the files of the Assistant Commissioner (Assessment), Special Circle-III, Ernakulam. The petitioner used to import superior kerosene oil from abroad under the import licence granted by the Government of India. The import is done through Madras and Kochi ports. During the assessment year 1996-97, the petitioner imported 5,616.454 kls of kerosene through Kochi port and out of which 1,595.001 kls were sold locally and 4,728 kls were transported to Pondich ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndently verified the records and found that the defects noticed still exist. Departmental delivery notes recovered by the intelligence wing not produced for my verification. The total turnover as per monthly returns conceded as Rs. 47,65,9047 whereas as per accounts it is conceded as Rs. 4,74,85,047. The difference comes to Rs. 1,74,000. This is not explained. In view of the above observations, it is proposed to reject the return and accounts and finalise the assessment for 1996-97 to the best of judgment. This is in so far as KGST assessment is concerned. The CST assessment completed by the assessing authority is in no way better than that of under the KGST Act. It is still worse. In the best judgment assessment order passed, the assessing authority once again merely incorporates the reasoning of the intelligence officer for levying penalty under section 45A of the KGST Act and then proceeds to observe: The abovesaid proposals were duly communicated to the assessee as per this officer's pre-assessment notice dated October 20, 2000 inviting objections, if any. The assessee has received the notice on November 9, 2000, but had not utilised the opportunity afforded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect from Kerala and as per accounts the appellant had no inter-State sales. The entire quantity other than sold locally were shown as stock transfer to Pondicherry. Verification of registers maintained at border check-post at Pondicherry revealed that no vehicle with kerosene passed through check-posts to Pondicherry as claimed by the appellant. Further enquiry made by the departmental officers at the branch office at Pondicherry also revealed that they have no storage facility to keep huge stock of kerosene. Further deposition of the driver of the lorry revealed that they have transported consignment from Kochi office sold at Coimbatore and nearby places. This fact is evidenced from the copy of the rent receipts paid by the appellant for the transport of kerosene from Kochi to Coimbatore. The above findings of the assessing authority is not rebutted by the appellant. The appellant has not produced the transporting copy of the delivery note which is under the custody of the appellant and the stock transfer to Pondicherry could be established by the transporting copy of the departmental delivery note. The records seized at the time of inspection evidenced that the appellant has ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity had no other option but to confirm the proposal made and therefore, at this belated stage, the assessee can neither blame nor take any exception to the best judgment assessment orders passed. The learned counsel supports his submission by referring to a case law of this court in A. Abdul Rasheed v. State of Kerala reported in [1997] 105 STC 357; [1997] 1 ILR 77. It is well-settled that the assessing officer is a quasi-judicial authority. He exercises his quasi-judicial functions while completing the assessment and quantifying the tax liability of an assessee under the Act. Tax incidence is the ultimate product of assessment. The word assessment is a term of varying import. The word is sometimes used to mean the computation of the amount of tax and at other times to mean the whole procedure laid down for imposing the liability on the tax-payer. The term assessment used in the Act comprises the provisions relating to the subject-matter of taxation, rate of tax, basis at which the quantum of tax is to be arrived at, the exemptions to be given and the authorities for enforcing tax liability. The procedure for assessment should comply with the rules of natural justice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporating verbatim the findings and the conclusion reached by the intelligence officer of the Department while passing the order imposing the penalty under section 45A of the Act. Since there was no response from the assessee to the proposal made, he has confirmed the proposal made in the pre-assessment notice, while completing the assessment proceedings for the assessment year in question both under the KGST and CST Acts. The assessment order so passed is only yet another affirmation or confirmation or endorsement of the penalty order passed by the intelligence officer, except an addition made towards the probable suppression during the assessment year in question. This is not what is expected of the assessing authority, even while completing the assessment proceedings by resorting to best judgment assessment. The order of assessment should definitely indicate the application of mind by the assessing authority even while completing the best judgment assessment and he is not expected to emboss his seal of approval to the orders made by the intelligence officer of the Department, since both these proceedings are distinct and different. In our considered view, the assessing au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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