O KASSIM KANNU Vs. STATE OF KERALA

JUDGEMENT

(1.) Against the petitioner in this tax revision case the Assistant Sales Tax Officer completed a nil assessment fixing the turnover at Rs. 9000. Subsequently, some secret accounts were recovered from the petitioner's shop and some information was also received from a third party that the petitioner effected regular sales for a considerably higher amount. Basing on these, the Deputy Commissioner of Agricultural Income Tax and Sales Tax called for the papers exercising his powers of revision and issued a notice to the assessee to show cause why the nil assessment should not be set aside and the Sales Tax Officer be directed to make further investigation in the matter. The petitioner appeared and objected, but the Deputy Commissioner overruled his objection, set aside the nil assessment and directed the Sales Tax Officer (since the escaped turnover was above Rs. 20000) to make further investigation with a view to assess the escaped turnover. The petitioner took up the matter in appeal before the Appellate Tribunal; and the Tribunal confirmed the aforesaid decision of the "Deputy Commissioner. In revision, the correctness of the order of the Appellate Tribunal is challenged.

(2.) The argument of the counsel of the petitioner, put in a nut shell, is that the power of revision of the Deputy Commissioner cannot be used to direct the assessment of escaped turnover, for which power is conferred on the assessing authority under a different provision of law. In other words, the contention is that the power of the Sales Tax Officer to assess escaped turnover under S.19 of the Kerala General Sales Tax Act of 1963 is different and distinct from the power of revision of the Deputy Commissioner under S.35 of the Act, and that the latter power cannot be used to achieve the result contemplated by the use of the former power -- the assessment of escaped turnover.

(3.) There are at least five decisions of the Supreme Court on the question, of which four are in cases arising from this State. The first decision is State of Kerala v. M. Appukutty ( 1963 (14) STC 242 ) a decision in a case from this State. The Supreme Court was considering in that case similar provisions of the Madras General Sales Tax Act, viz., S.12(2) and R.17. S.12(2) dealt with the Deputy Commissioner's power of revision and R.17 dealt with the power of the assessing authority to tax escaped turnover. The Supreme Court said: