RAGHAVAN, J. - Against the petitioner in this tax revision case the Assistant Sales Tax Officer completed a nil assessment fixing the turnover at Rs. 9,000. Subsequently, some secret accounts were recovered from the petitioner's shop and come information was also received from a third party that the petitioner effected regular sales for a considerable 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. 20,000) 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.

The argument of the counsel of the petitioner, put in a nutshell, 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 section 19 of the Kerala General Sales Tax Act of 1963 is different and distinct from the power of revision of the Deputy Commissioner under section 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.

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 S.T.C. 242 (S.C.)), 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., section 12(2) and rule 17. Section 12(2) dealt with the Deputy Commissioner's power of revision and rule 17 dealt with the power of the assessing authority to tax escaped turnover. The Supreme Court said :

"Therefore the Deputy Commissioner was not in the absence of any substantive proceeding for exercise of revisional powers competent to assess escaped turnover. But the power to assess escaped turnover does not arise out of the revisional jurisdiction. In exercising revisional jurisdiction the Deputy Commissioner would be restricted to the examination of the record for determining whether the order of assessment was according to law. Rules 17 confers power to assess escaped turnover which may normally be exercised on matters de hors the record of assessment proceedings before the Deputy Commercial Tax Officer."

The Supreme Court said further towards the end of the judgment :

"That section [section 12(2) deals with another state of affairs and another jurisdiction, i.e., where the Deputy Commissioner suo motu or on an application made calls for the record and determines the legality or propriety of an order made by one of the subordinate officers. It cannot be said in view of rule 17 that the power of revision by the Deputy Commissioner is limited to powers under section 12(2). Rule 17 deals with a separate and independent jurisdiction in regard to the determining and taxing (of) escaped turnovers."

The next decision of the Supreme Court is again in a case from this State, viz., The State of Kerala v. K. M. Cheria Abdulla and Company ([1965] 16 S.T.C. 875 (S.C.)). In that case also the Supreme Court was considering the Madras General Sales Tax Act and the Rules framed thereunder. The Supreme Court said :

"It wou