TaxTMI 
TaxTMI 
2001 (11) TMI 989
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal petition is at the instance of the State. There is a challenge against regulation 37 of the Kerala Sales Tax Appellate Tribunal Regulations, 1966 framed under section 4(4) of the Kerala General Sales Tax Act, 1963, hereinafter referred to as "the Act" with the previous sanction of the Government. Regulation 37 reads as follows: "The Tribunal may, in any proceedings, issue a Commission for the examination, or interrogatories, or otherwise, of any person or for examining the accounts or records of any person resident within the State. Provisions of order XXVI of the Code of Civil Procedure, 1908 and of the Civil Rules of Practice as far as practicable shall apply to the application form to be issued and return of Commissions." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essee did not in so many words at the pre-assess- ment stage dispute the genuineness of the document and hence it was not open to him to take up this issue at the second appeal stage before the Tribunal and exhibit P2 reply from the assessee is relied on. I am afraid that contention may not be fully correct. In exhibit P2 at paragraph 12 the assessee has referred to the issue as follows: "You have referred a letter dated December 7, 1987 in para (5) of your grounds, but I have not written any such letter. I have signed some papers in the office while I have been in the office. I seriously (words are missing in the photocopy) in a paper unknow- ingly left there by me or this letter is concocted one." Thus it cannot be said that the ass....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d his opinion as per exhibit P5 report concluding that the disputed document is a forged one, not executed by the assessee. Since the expert was not keeping well to travel to give evidence before the Tribunal, on application exhibit P6 order was issued to examine the expert by a Commission. One Mr. M.T. George, Advocate of the Supreme Court was appointed as the Advocate Commission and on examination exhibit P7 deposition was forwarded to the Tribunal. The expert deposed in terms of exhibit P5 report. That is in September, 2001. It is at that stage, the State took up the challenge before this Court against the entire proceedings, from exhibits P3 to P7 of the Tribunal including a challenge against the very statutory provision. 6.. The Tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unal on examining the same by Commission on the basis of the provisions of Order XXVI of the Code of Civil Procedure. One fails to understand as to how there could be a grievance for the State on this aspect. If the power of the Tribunal is conceded for the purpose of summoning and examining a person or document, then it is only a matter of procedure as to how the examination is done and that procedure is laid down in regulation 37 empowering the Tribunal to conduct the examination even by a Commission. I do not think that there is any inconsistency. I also do not think any prejudice as such would be caused to the State. It would not in any way affect the cause of justice. Unless the Tribunals are given such powers, it will not be practicab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e been arrived at by comparing the disputed signature with that of the sample signatures. As already observed above, the sample signatures are of 2001 whereas the disputed signatures are of 1987. It needs no elaboration to note that in such circumstances, the genuineness of the document at the hands of the expert was not tested in a fair, proper and reasonable manner. It may be seen that the specimen signatures of the assessee who himself disputes his signature affixed in 1987 are taken in 2001 knowing fully well that it is for the purpose of comparing with the disputed signature. It is not as if other signatures are not available on the records of the assessee, and that too taken contemporaneously. If such signatures affixed by the assesse....