9911796707
TMI Blog2000 (7) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... d and enhanced to Rs. 58,57,130 by the assessment order dated November 30, 1992. 2.. The revision petitioner filed appeal against the best judgment assessment on various grounds including the illegality of the excessive nature of the estimate. While the appeal was pending, the Deputy Commissioner of Agricultural Income-tax and Sales Tax, Kollam, invoked suo motu power, under section 35 of the Kerala General Sales Tax Act, 1963 stating that the estimation of turnover in the assessment is low considering the quantum of suppression which in his view comes to Rs. 29,26,734 as against Rs. 16,20,415 arrived at by the assessing authority. Petitioner submitted that a mere change of opinion by a different authority as to the quantum of estimate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing officer found suppression of Rs. 16,93,696. This was challenged before the appellate authority. Under section 34 of the above Act, the appellate authority has got power while deciding the appeal to enhance the assessment. According to the petitioner, it was not a case where the revisional authority wanted a fresh point to be decided. A perusal of annexure B will show that according to the Commissioner, a good portion of the actual suppression of the purchases and sales had not been considered while finalising the assessment. Thus, the assessment completed for the year 1991-92 was found to be improper and irregular. It is on the basis of that the Commissioner was claiming his suo motu power. Further he contended that this power can be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2), before the expiry of a period of one year from the date of the order in such appeal or revision or before the expiry of the period of four years referred to in clause (c) of that sub-section, whichever is later . Thus, originally, the power was given in cases where no appeal had been filed against the order or an appeal has been filed before the Appellate Assistant Commissioner or the Appellate Tribunal or of a revision in the High Court. By the amendment, the power is given to the Deputy Commissioner to deal with the case where orders have been passed in appeal or revision when a particular point has not been decided in appeal. A plain reading of sub-section (2A) will show that normally, power can be exercised by the Appellate Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Division Bench held that there will be a cautious approach when a power is exercised under section 35(2A) of the Kerala General Sales Tax Act, 1963. According to the Division Bench, a balancing of this consideration is required in discharging the issue. If a particular point is not likely to arise for decision at all before the appellate authorities or before the court because of the nature of the decision rendered by the assessing or other authority the Deputy Commissioner could exercise his power of revision under sub-section (2A) even during the pendency of an appeal or revision, without waiting for the termination of these proceedings. At the same time, if the matter is an issue before an appellate authority, or there is a likelihood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain suppression. The assessing officer took the view that the suppression was to the tune of Rs. 15,98,696. It was this assessment that was pending in appeal. So, the question in issue before the appellate authority was whether the additions made by the assessing officer on the basis of the suppression were correct or not. It cannot be said that the question of suppression and the actual suppression are not the subject-matter of the appeal. The Deputy Commissioner, in annexure B order says that a good portion of the actual suppression of the purchases and sales had not been considered while finalising the assessment. Thus, the assessment completed for the year 1991-92 was found to be improper and irregular. Thus, the Deputy Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the Commissioner under section 263 is undoubtedly a supervisory jurisdiction. It is intended for interference in special cases to counteract orders which are erroneous as well as prejudicial to the interests of the Revenue. In this context, therefore, the expression 'prejudicial to the interests of the Revenue' must be regarded as involving a conception of acts or orders which are subversive of the administration of revenue. There must be some grievous error in the order passed by the Income-tax Officer, which might set a bad trend or pattern for similar assessments...". In Bismillah Trading Co. v. Intelligence Officer, Squad No. II, Agricultural Income-tax and Sales Tax [2000] 119 STC 558, a division Bench of this Court held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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