JUDGMENT T. L. VISWANATHA IYER, J. - An assessment was completed on the respondent-assessee on March 27, 1984, for the assessment year 1982-83 under the Kerala General Sales Tax Act, 1963 ("the Act"). Thereunder, the assessing authority levied tax on the sales turnover of jute hessian at 4 per cent, and he did not levy any tax on the amount of cess paid on the purchase of rubber effected within the State, apparently in the view that it did not form part of the purchase turnover. But the Deputy Commissioner of Sales Tax, Kottayam, who possesses powers of revision under section 35 of the Act, set aside the assessment on the ground that tax should have been levied on the amount of rubber cess, as that formed part of the purchase turnover, and further that there was an under-assessment in respect of the turnover of jute hessian, which according to him, was taxable at 10 per cent. The Deputy Commissioner noted that in the subsequent years 1983-84 and 1984-85, jute hessian had been assessed at 10 per cent while the assessee was subjected to tax only at 4 per cent in the year 1982-83 under the assessment in question. There was thus loss of revenue to the extent of Rs. 41,085.47. The assessment was thus set aside in exercise of the powers under section 35(2A) of the Act. 2. The assessee challenged the order in appeal before the Sales Tax Appellate Tribunal, who allowed it in toto. The Tribunal took notice of the fact that an appeal was pending against the order of assessment before the Appellate Assistant Commissioner, though on certain other grounds. The revisional order cancelling the assessment therefore violated sub-section (2)(b) of section 35 of the Act. On merits, the Tribunal held that Government had issued a clarification under section 59A that jute hessian was taxable at the general rate of 4 per cent, and not at 10 per cent. So far as rubber cess was concerned, the point was covered in favour of the assessee by the decision of the Full Bench of this Court in Madras Rubber Factory Limited v. State of Kerala [1989] 74 STC 56. Therefore the appeal was allowed on merits as well as on the point of jurisdiction. 3. The Revenue has filed this tax revision case challenging the order of the Tribunal. Therefore the appeal was allowed on merits as well as on the point of jurisdiction. 3. The Revenue has filed this tax revision case challenging the order of the Tribunal. It is their case that the revisional order of the Deputy Commissioner is within the special power conferred by section 35(2A) which operates notwithstanding anything contained in sub-section (2), and therefore the Tribunal was in error in setting aside the assessment order on the ground that it was in violation of sub-section (2)(b). It was pointed out that the points on which the order of assessment was set aside by the Deputy Commissioner had been decided in favour of the assessee by the assessing authority and therefore could not be the subject of any appeal before the Appellate Assistant Commissioner under section 34. 4. On the other hand, the contention of the assessee is that the Deputy Commissioner's power of revision, whether under sub-section (2A) or otherwise, is exercisable only when no appeal or revision is actually pending. If the matter is pending, either in appeal before the first appellate authority, or before the Tribunal, or in revision before this Court, the revisional authority has to await the disposal of those proceedings before exercising the power under sub-section (2A). In other words, the contention is that so long as an appeal is pending in fact, exercise of the revisional power is precluded though the point in issue may not be the subject of consideration by the appellate authority at all. 5. We shall extract sub-sections (1), (2) and (2A) of section 35 to understand the precise nature of the said provisions : "35. Powers of revision of the Deputy Commissioner suo motu. - (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 which in his opinion is prejudicial to the revenue 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. (2) The Deputy Commissioner shall not pass any order under sub-section (1) if, - (a) the time for appeal against the order has not expired; (b) the order has been made the subject of an appeal to the Appellate Assistant Commissioner or the Appellate Tribunal or of a revision in the High Court; or (c) more than four years have expired after the passing of the order referred to therein. (2A) Notwithstanding anything contained in sub-section (2), the Deputy Commissioner may pass an order under sub-section (1) on any point which has not been decided in an appeal or revision referred to in clause (b) of sub-section (2), before the expiry of a period of one year from the date of the order in such appeal or revision or before the expiry of the period of four years referred to in clause (c) of that sub-section, whichever is later." Sub-section (2A) was introduced with effect from April 1, 1978, by the amending Act 21 of 1978, but neither the objects and reasons nor the memorandum accompanying the amending Bill throw any light on the circumstances attending that amendment, so that we have to decide the issue before us without any such extraneous aids. 6. Sub-section (1) vests the Deputy Commissioner with the power to call for and examine any order passed or proceedings recorded under the Act by any officer or authority subordinate to him, other than an Appellate Assistant Commissioner, which in his opinion is prejudicial to the Revenue, and pass such order thereon as he thinks fit after making, or causing any enquiry to be made. Sub-section (2) bars the Deputy Commissioner from exercising this power if one or other of the contingencies mentioned in clauses (a), (b) or (c) exist. One of these contingencies is that the order has been subject to appeal before the statutory authorities, or revision before this Court [vide clause (b)]. Sub-section (2A) operates notwithstanding anything contained in sub-section (2). Sub-section (2) bars the Deputy Commissioner from exercising this power if one or other of the contingencies mentioned in clauses (a), (b) or (c) exist. One of these contingencies is that the order has been subject to appeal before the statutory authorities, or revision before this Court [vide clause (b)]. Sub-section (2A) operates notwithstanding anything contained in sub-section (2). It enables the Deputy Commissioner to pass an order in revision on any point, which has not been decided in appeal or revision of the nature referred to in clause (b) of sub-section (2); and he can exercise the power within a period of one year from the date of the order in the appeal or revision or before the expiry of a period of four years from the passing of the order, whichever is later. 7. Sub-section (2A) is couched in wide language, evidently because it is intended to confer an extraordinary power to prevent escape of tax. The authority is to exercise the revisional power on any point which has not been decided in appeal or revision either by the Appellate Assistant Commissioner, the Appellate Tribunal or this Court. Looking at the section as it stands, the only fetter on the Deputy Commissioner's power is the de facto existence of a decision on the point by either of the appellate authorities or by this Court. The user of the expression "which has not been decided" is very significant in this context. If such a decision does not exist in fact, it will be open for the Deputy Commissioner to exercise his revisional power on the point. But such an unfettered power cannot be visualised even under sub-section (2A) despite the width of its language and some fetters have necessarily to be placed on it to avoid its trenching on the exercise of appellate power. 8. There can be no dispute that the Deputy Commissioner could exercise his power after the disposal of the appeal, provided the point in issue has not been decided by the concerned appellate authority. As the section stands, this is plainly possible, and the power could be exercised even in the interregnum between the disposal of an appeal by an appellate authority and the filing of the next appeal or revision. As the section stands, this is plainly possible, and the power could be exercised even in the interregnum between the disposal of an appeal by an appellate authority and the filing of the next appeal or revision. The crux of the dispute is whether the power is exercisable when an appeal is pending, when there is no likelihood of the appellate authority or this Court dealing with the point in appeal or revision. 9. After having given our anxious consideration to the various possible contingencies, we are of the opinion that sub-section (2A) must bear an interpretation which will sustain the power of the Deputy Commissioner, at the same time without infringing the powers of the appellate authorities or of this Court. In taking this view, we are aware that the Appellate Assistant Commissioner and the Tribunal functioning under the Act possess the power to enhance the assessment, so that the assessing authority could on discovering any mistake leading to under-assessment or escape of assessment, request the Appellate Assistant Commissioner or the Tribunal to enhance the assessment by modifying that mistake. 10. Various contingencies can be visualised in the interpretation of this section. A point might have been expressly decided by the assessing authority in favour of the assessee; or he might have omitted to consider a particular point, and not levied tax, as in the case of the rubber cess in the assessment before us. In that event, the appeal before the Appellate Assistant Commissioner at the instance of the assessee will be only on other points and there is no likelihood of his deciding on this point at all. Is it obligatory for the Deputy Commissioner in this case, to wait till the disposal of the appeal to exercise the revisional jurisdiction when it is otherwise obvious that there is no possibility at all of the Appellate Assistant Commissioner deciding the point on which the revisional power is sought to be exercised ? 11. Another contingency is that of an appeal disposed of by the Appellate Assistant Commissioner, without any decision by him on a particular point. The pendency of an appeal before the Tribunal on other points, need not in such cases preclude exercise of the revisional power under sub-section (2A). 12. At the same time, a trenching on the appellate power should also be ruled out. The pendency of an appeal before the Tribunal on other points, need not in such cases preclude exercise of the revisional power under sub-section (2A). 12. At the same time, a trenching on the appellate power should also be ruled out. To cite an example, it may happen that the rate of tax on an item of goods is the subject of appeal before the Appellate Assistant Commissioner. The Deputy Commissioner, if he is of the opinion based on a different classification, that the rate of tax ought to be higher than that adopted by the assessing authority or that canvassed by the assessee, cannot by invoking his power under sub-section (2A) impose the higher rate of tax merely because a decision has not yet been rendered by the Appellate Assistant Commissioner. This is the case we had in mind when we mentioned earlier that the power could be made exercisable only without infringing or impinging on the appellate power. Similar other cases could be postulated. 13. A balancing of these considerations is required in deciding the issue before us. If a particular point is not likely to arise for decision at all before the appellate authorities or before this Court because of the nature of the decision rendered by the assessing or other authority we are of the opinion that the Deputy Commissioner could exercise his power of revision under sub-section (2A) even during the pendency of an appeal or revision, without waiting for the termination of these proceedings. Else recovery of revenue due to the State and on which perhaps there could be no dispute, will remain put off merely because of the pendency of statutory appellate or revisional proceedings on other points. At the same time, if the matter is in issue before an appellate authority, or there is a likelihood of the appellate authority speaking on the point, the exercise of the revisional power is precluded. The fact that no decision has yet been rendered in appeal on the point will not justify the exercise of the power in such cases. The period of time fixed in the sub-section is only the outer limit for exercise of the power and does not signify that the power becomes exercisable only after the disposal of the appeal or revision, as contended by counsel for the assessee. 14. We draw inspiration for this view of ours from certain decisions. The period of time fixed in the sub-section is only the outer limit for exercise of the power and does not signify that the power becomes exercisable only after the disposal of the appeal or revision, as contended by counsel for the assessee. 14. We draw inspiration for this view of ours from certain decisions. In State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144, the Supreme Court held against the merger of the order of the Deputy Commercial Tax Officer in the proceedings of the Deputy Commissioner in revision, on a particular point, when that point was not the subject-matter of the revision before the Deputy Commissioner. This view has been consistently applied in such cases. A collection thereof has been made by this Court in Commissioner of Income-tax v. Travancore Tea Estates Co. Ltd. [1988] 172 ITR 733; (1988) 1 KLT 787 . In that case speaking with reference to section 263 of the Income-tax Act, 1961, this Court stated that the doctrine of merger when considered in the context of the provisions of a taxing statute can have application only in respect of matters considered and decided by the appellate authority, and not matters outside the decision. A narrow construction of the revisional power, limiting or diluting its scope would be a serious inroad into the object of the legislative conferment of power to subserve the public interest to bring to tax escaped income or turnover. 15. In Kelpunj Enterprises v. Commissioner of Income-tax [1977] 108 ITR 294, a Division Bench of this Court speaking with reference to section 263 of the Income-tax Act, 1961, observed that the pendency of an appeal against the order of assessment was not a bar to the exercise of jurisdiction under that provision as there was no question of merger of the Income-tax Officer's order until the appellate authority disposed of the appeal. 16. The manifest intent behind sub-section (2A) is to clarify this position and to offset any contention about alleged merger of the order of a subordinate authority in the order of an appellate or revisional authority, merely because an appeal or revision was taken on some other point. 16. The manifest intent behind sub-section (2A) is to clarify this position and to offset any contention about alleged merger of the order of a subordinate authority in the order of an appellate or revisional authority, merely because an appeal or revision was taken on some other point. Sub-section (2A) applies notwithstanding anything contained in sub-section (2) and clarifies that so long as the appellate or revisional authority has not spoken on, or decided, a particular point, and or is not likely to speak on it, exercise of the revisional power is not excluded. 17. The Tribunal was not therefore right in holding that the Deputy Commissioner acted without jurisdiction in setting aside the order of assessment. 18. Coming to the merits of the case, the Tribunal has held that no tax is payable on the element of rubber cess in the purchase of rubber. This view is supported by the decision of the Full Bench already referred to. The decision of the Tribunal on this point does not therefore call for any interference. 19. So far as the rate of tax on jute hessian is concerned, the Tribunal's decision is based on the clarification issued by Government under section 59A. This section has been held to be unconstitutional by a Bench of this Court in Travancore Chemical & Manufacturing Company Ltd. v. State of Kerala [1991] 81 STC 313; (1991) 1 KLT 196 so that any clarification issued thereunder, even if it be in favour of the assessee, is also null and void. We are not therefore in a position to uphold the decision of the Tribunal made on the strength of a clarification under section 59A. The matter has to be remitted back to the Tribunal for consideration of this question on the merits. The tax revision case is therefore allowed and the case is remitted back to the Sales Tax Appellate Tribunal for consideration of the proper rate of tax applicable to jute hessian sold by the assessee during the year 1982-83. There shall be no order as to costs. Petition allowed.