TaxTMI 
TaxTMI 
2009 (11) TMI 838
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....g a bar hotel where Indianmade foreign liquor, beer, wine, etc., are sold in retail. Wholesale distribution of liquor in the State is the monopoly business of the Kerala State Beverages Corporation which is a company under the control of the Government of Kerala. During 2000-01, the respondent's hotel was searched by the Sales Tax Department and they detected excess stock of liquor over the accounted quantity valued at Rs. 8,519. When the Income-tax Department carried out search in the premises of the respondent under section 132 of the Income-tax Act on June 21, 2001, they found that the quantity and value for sale of liquor accounted in the books of account is not the same as the quantity and value found in the computer records seized....
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....o the assessee and after verifying the records. The Department did not contest the orders of the first appellate authority remanding the assessments for reconsideration for the purpose stated above. However, the assessee filed second appeals before the Tribunal contending that the only legal source of liquor in Kerala is from the Kerala Beverages Corporation Ltd. and therefore, assessment of first sales of liquor cannot be made at the hands of the assessee. Even though the Departmental Member through a detailed order and by reference to various decisions of this court rejected the appeal, the majority constituting the Accountant Member and Chairman held that there cannot be first sale of liquor in Kerala other than by KSBC which is the only....
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....h judgment of this court in Abraham Mathai v. State of Kerala reported in [2004] 138 STC 678; 11 KTR 112 and another decision in J.J. Agencies (P) Ltd. v. Intelligence Officer (judgment in O.P. No. 26746 of 2002 dated August 13, 2006) and held that there is no presumption that any liquor found sold in the State has its origin from the Kerala State Beverages Corporation as found by the majority Members of the Tribunal. The Special Government Pleader appearing for the State submitted that the most important of the unspecified decisions of the Tribunal relied on by them is the case of Lovely Thomas which though initially accepted by this court, was later overruled by Full Bench of this court. Referring to the later decisions of this court r....
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....t to be assessed and the onus to prove the ingredients of the charging section for the purpose of assessment is on the Department. The question to be considered is whether there is any justifiable evidence to assess first sale of liquor on the respondent. The respondent does not deny the seizure of the computer by the Income-tax Department with the data thereon which clearly disclose full details of sale of items in the hotel such as Indian-made foreign liquor, sales in the restaurant, sale of soft drinks, etc. It is seen that the bar sales found in the respondent's computer for the assessment year 1999-2000 was Rs. 58,93,563 as against sales accounted by the respondent to the Department at Rs. 37,52,122. Similarly for the year 2000-....
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....ts cannot be used against them. We are of the view that when actual sales figures found in the computer statement maintained by the assessee are found to be much higher than the turnover accounted to the Department, the only course open to the assessing officer is to take the figures from the assessee's computer and make assessment treating the same as actual sales. It is absurd to assume that excise case is booked against everyone involved in illicit trade of liquor in the State. May be few cases get caught by the Excise Authorities and in many cases the culprits escape from the clutches of the Excise Department. However, there is no presumption available in law that when trade in a commodity is controlled by State agencies, all sales ....