BALACHANDRAN Vs. SALES TAX OFFICER

JUDGEMENT

(1.) AN interesting question of law untraversed by any decision of this court arises for decision in this case. The question is whether an assessee could seek intervention in his favour by the Deputy commissioner under S. 35 of the Kerala General Sales Tax Act, 1963 (the 'act' for short ).

(2.) THE facts leading to this Original Petition are short. THE petitioner is running a small printing press in which he gets printed letter heads, bill books, account books, invitation cards and the like on orders placed by customers. Assessments were completed on him under the Act for the years 1980-81,1981-82 and 1982-83 accepting his returns. However, he was charged tax at the rate of 8 percent treating the items supplied as "paper products".

(3.) THE question that arises for consideration, therefore, is whether an assessee could invoke S. 35 in relation to an order of assessment passed under S. 17 of the Act. It has to be remembered that an order of assessment is appealable to the Appellate Assistant Commissioner as defined in s. 2 (i) of the Act. THE Deputy- Commissioner exercises his powers of revision under S. 35 and 36, S. 35 conferring the power to be exercised suo motu of his own motion and S. 36 conferring me power to be exercised on application. S 36 can be invoked only in the case of those proceedings or orders for which, an appeal has not been provided for in S. 34 or S. 39 (S. 34 deals with appeals to the appellate Assistant Commissioner and S. 39 with appeals to the Appellate tribunal. ). In other words, no revision under S. 36 lies if the order or proceeding in question is appealable. THEre is no such prohibition in regard to s. 35 and it is described as a power given to the Deputy Commissioner, of his own motion, to call for and examine the record of any order passed or proceedings recorded by an officer or authority subordinate to him (Other than the Appellate Assistant Commissioner); I shall extract the relevant parts of the two Sections below: "35. Powers of revision of the Deputy Commissioner suo mote:- (1) THE Deputy Commissioner, may of his own motion, call for and examine any order passed or proceedings recorded under this Act by any officer or authority subordinate to him other than an Appellate Assistant Commissioner and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such order thereon as he thinks fit". (3) "no order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard. " "36. Powers of revision of Deputy Commissioner on application (1) Any person objecting to an order passed or proceeding recorded under this Act for which an appeal has not been provided for in S. 35 or S. 39 may, within a period of thirty days from the date on which a copy of the order or proceeding was served on him in the manner prescribed, file an application for revision of such order or proceeding to the Deputy Commissioner. "