BHIMA AND BROTHER JEWELLERS Vs. STATE OF KERALA

JUDGEMENT

(1.) The order of the Board of Revenue is challenged in this appeal.

(2.) Originally an order was passed against the appellant imposing a penalty in terms of Section 45A 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 other 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.

(3.) Appeal is provided to the High Court as per Section 40 of the said Act. Such an appeal is provided against an order passed under Section 37 or under Section 59A 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 Appellate 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 sub-section (3) of Section 45A of the Act. Within the scheme of Section 45A of the Act, a further suo motu revision is provided to the Board of Revenue under sub-section (5) of Section 45A 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 under Section 45A(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 45A can be in respect of an order passed by the Appellate Assistant Commissioner also. As per Section 45A(1), the original order imposing penalty can be imposed also by the Appellate Assistant Commissioner.