Implied penalty orders in assessment can be revised when the record shows the issue was considered.

Penalty formed part of the same enquiry as best judgment assessment under the Madras General Sales Tax Act, and the assessing authority was expected to consider it when completing the assessment. Where the notice called for a show-cause on penalty and the final assessment order was silent, that silence could still amount to an implied decision not to levy penalty if the record showed that the issue had been considered. Such an implied order is an order within the meaning of section 32(1) and can be revised by the Deputy Commissioner, who may then impose penalty. On that basis, the revisional challenge failed.

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Issues: Whether the Deputy Commissioner had jurisdiction under section 32(1) of the Madras General Sales Tax Act, 1959 to revise an assessment order and levy penalty for the first time when the assessing authority had not expressly recorded any order on penalty in the final assessment.

Analysis: Section 12(3) contemplates that penalty is part of the same enquiry as best judgment assessment and must ordinarily be considered when the assessment is made. The assessment notice had called upon the assessee to show cause against penalty, and the silence of the final assessment order did not necessarily mean that no decision on penalty had been taken. In the circumstances, the assessing authority must be taken to have applied its mind to the question of penalty and to have impliedly decided not to levy it. Such an implied decision is an order passed within the meaning of section 32(1), enabling the Deputy Commissioner to call for and examine it and pass such order as he thought fit.

Conclusion: The Deputy Commissioner had jurisdiction to revise the assessment and impose penalty. The challenge to the revisional order failed.

Ratio Decidendi: An assessment authority's silent final order on penalty may amount to an implied order if the record shows that the question of penalty was considered, and such an implied order is amenable to revision under section 32(1).

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