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1998 DIGILAW 488 (KER)

S. VISWANATHAN v. STATE OF KERALA

1998-10-07

J.B.KOSHY, OM PRAKASH

body1998
JUDGMENT OM PRAKASH, C.J. – Heard counsel for the parties. 2. The short question for consideration in this revision petition filed by the assessee is whether the order passed under section 47 of the Kerala General Sales Tax Act, 1963, can be later interfered with by the Deputy Commissioner exercising revisional power suo motu under section 35 of the Act. 3. On March 6, 1992, an inspection was made on business premises of the assessee by the intelligence squad of the department and, then, suppression was detected. On suppression being detected at the time of inspection, compounding was done and the compounding fee levied was paid by the assessee. Later, the Deputy Commissioner, purporting to exercise power under section 35 of the Act, took the view that suppression was not to the extent as stated in the compounding order; but, that was of a large magnitude, that is, to the extent of Rs. 6,36,693 and, therefore, more compounding fee was payable by the assessee. He, therefore, re-computed the compounding fee and called upon the assessee to pay the same. 4. Thereafter, the assessee approached in appeal before the Tribunal, who affirmed the order of the Deputy Commissioner. This is how the assessee has come to this Court in revision. 5. After the matter being compounded, we are of the considered view that neither can the assessee nor can the department challenge the compounding order. In the compounding order, it is implied that the extent of suppression which are detected at the time of inspection by the Intelligence Squad of the department, was accepted by the assessing authority and, therefore, it was no more open to the Deputy Commissioner to reopen the matter under the purported exercise of power under section 35 of the Act that the suppression was much higher and, therefore, the assessee was liable to pay much more compounding fee. 6. The revision, therefore, succeeds and is allowed. The order dated April 16, 1997 passed by the Appellate Tribunal and the order, annexure "C", passed by the Deputy Commissioner are set aside. Petition allowed.