PAUL P.PAUL Vs. STATE OF KERALA

JUDGEMENT

(1.) As the impugned order of the Commissioner of Commercial Taxes in OT. Revision No.5 of 2023 relies on the impugned order of the Commissioner of Commercial Taxes in OT.Revision No.6 of 2023, the two OT.Revision petitions are taken up for consideration together and disposed by this common judgment.

(2.) The brief facts necessary for the disposal of these OT. Revision petitions are as follows:

(3.) In OT. Revision No.6 of 2023, the impugned order of the Commissioner of Commercial Taxes was passed in proceedings that emanated from an order dtd. 18/12/2017 of the Assessing Authority, which had assessed the petitioner to escaped turnover pursuant to proceedings initiated under Sec. 25(1) of the KVAT Act, after the original order of assessment dtd. 5/6/2014 had been passed in relation to the petitioner. Against the order dtd. 18/12/2017, the petitioner had preferred an appeal before the First Appellate Authority, who had, by an order dtd. 22/6/2018, modified the order dtd. 18/12/2017 passed under Sec. 25(1). Even before a modified order could be passed by the Assessing authority based on the order of the First Appellate Authority dtd. 22/6/2018, suo motu proceedings were initiated by the Deputy Commissioner in terms of Sec. 56 of the KVAT Act for revising the order dtd. 18/12/2017 passed under Sec. 25(1) of the KVAT Act. Although the petitioner had pointed out to the Deputy Commissioner that the proceedings under Sec. 56 could not be initiated when an appeal had already been filed by the petitioner against the order that was sought to be revised (Order dtd. 18/12/2017) and the Appellate Authority had passed orders in the said appeal, the Deputy Commissioner erroneously assumed that inasmuch as the order dtd. 18/12/2017 was itself a consequential order passed at the instance of the High Court in proceedings that had been preferred before High Court by the petitioner assessee, a suo motu revision of the said order could be effected. This order of the Deputy Commissioner dtd. 10/1/2020, cancelling the order dtd. 18/12/2017 at the point in time when an appeal preferred by the petitioner assessee against the said order had already been decided by the Appellate Authority on 22/6/2018, was obviously in contravention of the provisions of Sec. 56 (2) (b) of the KVAT Act more so when the provisions of Sec. 56 (3) of the Act had no application to the facts of the case. This aspect however was not taken note of by the Commissioner of Commercial Taxes, who passed the impugned order dtd. 30/3/2021 in OT. Revision No.6 of 2023. As a matter of fact, the impugned order of the Commissioner of Commercial Taxes clearly reveals that there was a patent non-application of mind by the said authority to the issue while disposing the revision preferred by the petitioner before the said authority. At any rate, since the legal position with regard to the initiation of suo motu proceedings under Sec. 56, under circumstances where the order sought to be revised has been the subject matter of an appeal before the Appellate Authority on the very issue that was sought to be revised, is clear from the express provisions of the statute itself, we have no hesitation in holding that the impugned order of the Commissioner of Commercial Taxes dtd. 30/3/2021 in OT. Revision No.6 of 2023 cannot be legally sustained.