Bhima and Brother Jewellers and Diamond Merchants vs State of Kerala

Abdul Gafoor, J.—The order of the Board of Revenue is challenged in this appeal.

Originally an order was passed against the appellant imposing a penalty in terms of Section 45 A of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act"). That was challenged in an application before the Deputy Commissioner of Agricultural Income Tax and Sales tax, Alappuzha, as provided for in Sub-section (3) of that Section. The appellant succeeded in that application and the order imposing penalty was set aside. The Board of Revenue exercising its suo motu powers took up the matter for consideration and reversed the order of the Deputy Commissioner of Agricultural Income Tax and Sales Tax. That order is under challenge in this appeal.

Appeal is provided to the High Court as per Section 40 of the said Act. Such an appeal is provided against an order passed u/s 37 or u/s 59 A of the Act. Section 37 of the Act which is relevant for the purpose of this appeal does confer suo motu power on the Board of Revenue to call for and examine any order passed or proceedings recorded under the Act by any officer or authority subordinate to the Board of Revenue other than the Appellant Assistant Commissioner. Supposing an order is one passed by the Appellate Assistant Commissioner, suo motu power cannot be invoked by the Board of Revenue. Imposition of penalty in terms of Section 45A(1) is only "if the assessing authority or the Appellate Assistant Commissioner is satisfied that" any person had made any attempt to evade tax. Against such an order, an application is provided to the Deputy Commissioner under Section-Section (3) of Section 45 A of the Act. Within the scheme of Section 45 A of the Act, a further suo motu revision is provided to the Board of Revenue under Sub-section (5) of Section 45 A of the Act. The order passed by the Deputy Commissioner also can be subjected to review by the Board of Revenue. The suo motu revisional power conferred on the Board of Revenue is available against the original order u/s 45 A(1) as well. It can be one passed by the Appellate Assistant Commissioner also. In other words, the power of the Board of Revenue under Sub-section (5) of Section 45 A can be in respect of an order passed by the Appellate Assistant Commissioner also. As per Section 45 A(1), the original order imposing penalty can be imposed also by the Appellate Assistant Commissioner.

A reading of Section 37 of the Act indicates that the Board of Revenue cannot exercise suo motu power conferred under that provision against an order of the Appellate Assistant Commissioner. An order imposing penalty, as mentioned above, can also be in relation to the proceedings by the Appellate Assistant Commissioner as well.

It cannot be taken that, if an order u/s 45 A(1) is passed by one authority a suo motu revision by the Board of Revenue is maintainable and if the same order is passed exercising the same power by another authority, such revision will not be maintainable. So the revision by the Board of Revenue shall be under the same provision and in the same manner. So the revision by the Board of Revenue against an order u/s 45 A(1) or by the Deputy Commissioner u/s 45 A(3) shall be in terms of Section 45 A(5) and not u/s 37 of the Act. An appeal to the High Court will be maintainable if the Board of Revenue exercises suo motu power u/s 37 or 50 A of the Act.

Here the initial proceedings were u/s 45 A(1). So revision by the Board of Revenue shall only be u/s 45 A(5) of the Act. Merely because the Board of Revenue has cited Section 37 of the Act, it cannot be taken that the Board of Revenue have power under that Section. It shall be taken as only in terms of Section 45 A (5) of the Act. Viewed so, no appeal will lie against such an order.