TaxTMI 
TaxTMI 
2005 (3) TMI 446
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....section 12(3) of the Act vide order dated July 12, 1990 for the assessment years 1987-88 and 1988-89. 3.. The Additional Commissioner of Commercial Taxes, Devangere Zone, Devangere, issued notices dated February 16, 1994 and March 21, 1994 under section 22-A of the Act proposing to revise the order of assessment dated July 12, 1990 passed by the assessing authority on the ground that the assessment order was erroneous and prejudicial to the interest of the Revenue. In the notices, the revisional authority had made observations to the effect that the books of accounts have not been properly maintained. In response to the notices, the appellant filed reply on April 4, 1994 denying the observations made by the revisional authority and had requested the said authority to drop the proceedings initiated under section 22-A of the Act. The revisional authority on April 8, 1994 issued a further notice under section 22-A(1) of the Act making the same proposal as made in the earlier notices and further proposed to levy penalty under section 18-A of the Act. The revisional authority confirmed the proposals made in the notices issued under section 22-A of the Act vide order dated June 2, 199....
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....The learned counsel relied on Commissioner of Income-tax v. Executors of the Estate of Late H.H. Rajkuverba Dowager Maharani Saheb of Gondal [1978] 115 ITR 301 (Kar). In the above case, there was failure to charge interest under section 217 of the Income-tax Act, 1961. The Commissioner of Income-tax initiated action under section 263 of the Income-tax Act, issuing notices to the assessee calling upon them to show cause as to why an order should not be made charging interest under section 217 of the Income-tax Act. The Karnataka High Court held that since an order under section 217 of the Income-tax Act does not form part of an order of the assessment, the mere omission of the Income-tax Officer to refer to the penal interest payable thereunder in the order of assessment cannot lead to the inference that the Income-tax Officer has waived the interest payable without giving any reason for doing so. It was held that as there was in existence no such order passed by the Income-tax Officer which would clothe the Commissioner with the jurisdiction to make an order under section 263 of the Income-tax Act, the action taken by the Commissioner was a premature one. (5) Learned counsel ....
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.... of the Karnataka Sales Tax Act, 1957. (b) Whether a penalty order under section 18-A of the Act forms a part of an assessment order. (c) While purporting to revise an order under section 12-A which neither expressly nor impliedly refer to any proceeding under section 18-A and were thus not within the contemplation of the assessing authority while passing the order under section 12(3), it is open for the Commissioner, while purporting to act under section 22-A in respect of the order under section 12(3) to pass an order under section 18-A either as a part of the order under section 22-A or separately as such under section 18-A. (d) On the facts and in the circumstances of the appellant's case, whether the revisional authority was right in levying penalty under section 18-A of the Act for the first time when the language employed in section 18-A of the Act did not confer any power on him for doing the same. 12.. We have carefully perused the pleadings, the orders passed by the authorities below and also of the High Court and perused the grounds of appeal and other annexures, etc. 13.. Before proceeding further, it is beneficial to reproduce sections 18, 18-A and 22-A ....
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....e justify, including an order, enhancing or modifying the assessment, or cancelling the assessment or directing a fresh assessment. (2) The Commissioner may on his own motion call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any officer subordinate to him is erroneous in so far as it is prejudicial to the interests of the revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment or directing a fresh assessment. (3) The Additional Commissioner or the Commissioner shall not exercise any power under sub-section (1) or sub-section (2), as the case may be, if- (a) the time for appeal against the order has not expired; (b) the matter has been subject to an appeal under section 22 or a revision in the High Court; or (c) more than four years have expired after the passing o....
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.... Act are different from the words used in other States' sales tax enactments. The words, viz., "pass such order thereon as the circumstances of the case justify" is not incorporated in the other Acts. Also under section 22-A of the Act, the revisional authority may enhance or modify the assessment or even cancel an assessment and direct fresh assessment. This indicates that the assessment proceedings are before the revisional authority who can pass such orders which the adjudicating authority could or should have done. Hence, if penalty under section 18-A is warranted, and the same is not levied by the assessing authority, then, the Additional Commissioner/revisional authority in his suo motu powers may impose penalty on the ground that "the circumstances of the case justifies the levy of penalty". 16.. However, in the following cases, it has been held that assessment proceedings and penalty proceedings are distinct and different. Therefore, if no penalty is levied in the order of assessment, then legally there is no "order" imposing penalty. In the absence of an order imposing penalty, the revisional authority cannot invoke its powers of suo motu revision. (a) Deputy Commiss....
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....y the Appellate Assistant Commissioner under sub- section (3) of section 31 or by the Appellate Deputy Commissioner under sub-section (3) of section 31A or by the Deputy Commissioner under sub-section (1) of section 32 or sub-section (3) of section 33 and if such order or proceeding recorded is prejudicial to the interests of the Revenue, may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order or proceedings and may pass such order thereon as he thinks fit. (iii) Provisions of section 67(1)(a) of the Gujarat Sales Tax Act, 1969 (1 of 1970): (considered in [1991] 83 STC 409) [Bhavnagar Chemical Works (1946) Ltd. v. Commissioner of Sales Tax, Ahmedabad] Section 67(1)(a): The Commissioner of his own motion within three years (or on application made to him within one year) from the date of any order passed by any officer appointed under section 27 to assist him, may call for and examine the record of any such order and pass such order thereon as he thinks just and proper. (iv) Provisions of section 57(1)(a) of the Bombay Sales Tax Act, 1959 (51 of 1959), as considered ....
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....rder passed (including an order passed in appeal) under this Act, or the Rules made thereunder by any officer or person subordinate to him and pass such order thereon as he thinks just and proper". (ix) A close scrutiny of section 40(1) of the Haryana General Sales Tax Act would show that the revisional authority can call for the record of any case pending or disposed of for the purposes of satisfying himself as to the legality or to the propriety of any proceedings or of any order made therein and may thereafter proceed to pass such order in relation thereto as he deems fit. (x) In [1969] 24 STC 491 (Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Dhanalakshmi Vilas Cashew Co.), a Bench of three Judges of this Court held that while exercising revisional jurisdiction, the revisional authority would be restricted to the examination of the record for determining whether the order of assessment was according to law. (xi) In view of the words, viz., "..........pass such order thereon as the circumstances of the case justify............" including an order enhancing or modifying the assessment or cancelling the assessment or directing a fresh assessment in the K....