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TMI Blog2008 (7) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... urchases and sales should be only for the value of actual suppression noticed or whether the assessing authority, after rejecting the books of accounts and the returns filed, could make further addition, apart from the actual suppression. The Full Bench has answered the aforesaid question by its order dated April 11, 2008 (Abookacker v. State of Kerala [2010] 27 VST 308 (Ker). While doing so, the court has stated as under: ". . . We are therefore of the view that decision of the Division Benches in the above two decisions restricting addition on account of suppression of inter-State purchases only for the value of actual suppression noticed is not correct law. We therefore overrule this view expressed by the Division Bench in the above tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter receipt of the pre-assessment notice, the assessee had filed a detailed reply and in that had contended that he had not received any goods from the consignors noted in the check-post declarations and, further, had sought an opportunity to cross-examine the consignors. Apart from that, the assessee had not produced any other evidence in support of its denial of the transactions reflected in the check-post declarations. The assessing authority, after considering the reply filed by the petitioner and based on the check-post declarations, has proceeded to complete the best judgment assessment and, in that, had made certain additions to the conceded total and taxable turnover and, accordingly, had quantified the tax liability. Aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1977] 40 STC 278 [FB] is proper and legal in the light of the principles stated by the Supreme Court in the decision in State of Kerala v. K T. Shaduli Yusuff reported in [1977] 39 STC 478? (iv) Whether the addition based on check-post declarations affirmed by the Tribunal is sustainable in the light of the decision of this court in C.O. Varghese v. State of Kerala reported in [2008] 11 VST 149; [2003] 2 KLT SN 106?" At the time of hearing of this revision petition, Sri Jose Joseph, learned counsel appearing for the petitioner, would contend that merely based on the check-post declarations, the assessing authority could not have passed the best judgment assessment and, further could not have made additions towards the probable suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence in rebuttal including the cross-examination of the declarant or other persons connected with the declaration or invoice and shall not adopt any indifferent or lethargic attitude by sitting with folded hands. We need not go into those aspects in this case because there is nothing on record to show that the assessee had made any attempt to make use of such opportunities to adduce evidence in rebuttal so as to demolish the probative value of the check-post declaration. We do not agree with the contention of the learned counsel for the petitioner that the check-post declaration should be discarded as an irrelevant scrap of paper, though there is reason in saying that the declarations made at the check-post cannot be blindly accepted as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it that the check-post officer has violated the principles of natural justice in not summoning the books of account of the consignor of the goods and also the concerned officials of the consignors for cross-examination to enable the petitioner to rebut the presumption contemplated under section 28AA(4) of the Act as per which the owner of the goods vehicle is presumed to have sold the goods inside the State if he fails to surrender the transit pass at the exit check-post before leaving the State. In our view, what is contemplated under the Act, is to provide an opportunity of personal hearing and to adduce evidence in support of the defence to a person, who is alleged to have violated the provisions of the Act. It is for that person to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after rejecting the returns filed by the assessee, has proceeded to pass best judgment assessment. The assessee, apart from denying the transaction, had not produced any other material by way of rebuttal evidence before the assessing authority. Therefore, the assessing authority has proceeded to accept the check-post declarations and has completed the best judgment assessment and while doing so, has made certain additions towards the probable omissions of sales and purchases. While completing the best judgment assessment, the basis that is adopted by the assessing authority is the transactions reflected in the check-post declarations. It is on rational basis that a best judgment assessment could be passed. The best judgment assessment pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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