K. S. PARIPOORNAN, J. - (1.) THE Revenue is the revision petitioner. THE respondent is an assessee. THE matter arises under the Kerala General Sales Tax Act, 1963. It relates to the year 1981-82. THE assessee is doing business at Big Bazaar, Calicut. It conceded a taxable turnover at Rs. 24,31,665. On October 4, 1981, the Intelligence Squad intercepted and checked one mini lorry KLH 4139. It showed that jaggery contained in the lorry was purchased by C. A. George, Chalissery, as per bill dated October 21, 1981, from the respondent. After verification it was held that there was undervaluation of about 45 per cent in the value of the goods sold. Based on this, the assessing authority proposed to reject the books of accounts. He also proposed addition by 40 per cent towards the turnover conceded to cover up the omissions and suppressions. In appeal there was an order of remit. Again the assessing authority completed the assessment to the best of judgment by adding 18 per cent to the turnover conceded. THE appeal filed therefrom was futile. In second appeal the Sales Tax Appellate Tribunal ordered a remit of the matter to the assessing authority with a direction to afford an opportunity to the assessee to cross-examine Shri C. A. George. After remit the assessing authority issued summons to Shri C. A. George. He did not appear. THE assessing authority informed the assessee about the non-appearance of Mr. George in spite of summons and requested the assessee to make arrangements to produce Shri C. A. George. It did not meet with success. After pre-assessment notice, the assessment was completed to the best of judgment by the assessing authority. THE assessment was upheld by the Deputy Commissioner (Appeals ). But in second appeal the Appellate Tribunal set aside the assessment in toto. It was on the ground that Shri C. A. George was not made available for cross-examination by the assessing authority. THE order of the Tribunal is dated March 7, 1990. THE Revenue has come up in revision from the aforesaid order.
(2.) WE heard counsel for the Revenue Mr. N. N. D. Pillai and also counsel for the assessee. Counsel for the Revenue seriously pressed only one question. It was argued that even assuming that the assessing authority did not comply with the directions of the Sales Tax Appellate Tribunal, contained in the order of remit, it only wanted deletion of the additions, but on no account the Appellate Tribunal was justified in setting aside the assessment in toto, thereby setting aside even the turnover conceded by the assessee. Counsel for the assessee could not meet the above plea. It is true that the assessing authority did not carry out the directions contained in the order of remit regarding the cross-examination of Shri C. A. George. That aspect was necessary only to sustain the estimated addition. Non-examination of C. A. George may affect or put in peril the estimate made by the assessing authority. In our opinion, that question, by any stretch of imagination, cannot affect the assessment of the conceded turnover of the assessee. In this view, the Sales Tax Appellate Tribunal committed a grave error in setting aside the assessment of the year 1981-82 in toto. It has failed to apply its mind and has acted mechanically and arbitrarily. The order of the Sales Tax Appellate Tribunal, dated March 7, 1989, in so far as it related to the assessment for the year 1981-82, is set aside. The Sales Tax Appellate Tribunal is directed to pass fresh orders in accordance with law. The tax revision case is allowed. Petition allowed. .;