P.R. Ramachandra Menon, J.

Whether the consequential order passed by the assessing authority pursuant to the remand ordered by the First Appellate Authority can survive on its own, if the order passed by the First Appellate Authority remanding the matter is set aside by the Second Appellate Forum, restoring the original order; is the point to be considered in this Revision Petition.

2. The petitioner, who is a PWD Contractor, was an assessee on the rolls of the Assessing Authority, Malappuram (Commercial Tax Officer (WC & LT), Malappuram) and he later came to be within the jurisdiction of the Assessing Authority at Thiruvananthapuram (Commercial Tax Officer [Works Contract], Thiruvananthapuram). In connection with the transactions for the year 2008-2009, the petitioner submitted return declaring a total turn over of Rs.10,95,30,373/- and taxable turn over of Rs. 1,60,04,508/-. On scrutiny, the said return was rejected and it was proposed to effect assessment on 'Best Judgment Basis' under Section 25(1) of the KVAT Act. This was mainly due to the fact that the value of the "work in progress" at the close of the year was not included as part of the turn over for the year and further, the vouchers issued towards 'hire charges' and 'labour charges' were found as 'self prepared' and not liable to be accepted. After affording an opportunity of hearing, the proceedings were finalised as per Annexure I Assessment order dated 30.06.2011, whereby the total turn over was fixed, adding the value of 'work in progress ' and also disallowing 15% of the 'hire charges' and 10% of the 'labour charges', to be included as part of the turn over. The assessment was finalised accordingly, fixing the balance tax payable as Rs.22,15,230/- and interest as Rs.5,75,960/-.

3. The above order was challenged by the petitioner by preferring an appeal before the First Appellate Authority. The contention raised was that, by virtue of Rule 9(c) of the KVAT Rules, 'work in progress' was not liable to be included as part of the turn over and that no amount was received by the petitioner/assessee towards the 'work in progress' reckoned by the Assessing Authority in the particular financial year. It was also contended that there was absolutely no rhyme or reason for the Assessing Authority to have disallowed 15% of the 'hire charges' and 10% of the 'labour charges'.

4. The First Appellate Authority, after hearing, passed Annexure II order dated 27.06.2012, whereby it was held that the value of 'work in progress' was not liable to be included as part of the turn over. The said authority also held that when the Assessing Authority had disallowed only 10% of the 'labour charges', there was no rationale in disallowing a higher extent of 15% in the case of 'hire charges', which hence was held as arbitrary. Accordingly, the dis-allowance of 15% of 'hire charges' was reduced to be 10%. The Assessing Authority was directed to effect re-assessment based on the observations and finding in Annexure -II order.

5. While so, the Intelligence Officer found that the entire value of the materials in respect of the goods supplied by the Department were never reflected in the accounts and accordingly, penalty was proposed to be imposed. After completing the procedural formalities, the Intelligence Officer passed orders imposing penalty, which made the petitioner to challenge the same by filing W.P.(C)No. 12137/2012 before this Court, wherein interference was declined. The verdict passed by the learned single Judge was challenged in W.A.No.1242/2012. When the appeal came up for consideration before the Division Bench, it was brought to the notice of the Bench that the assessment was still to be completed in view of the subsequent developments. In the said circumstance, Annexure -IV interim order was passed by the Bench on 03.07.2012, whereby the Assessing Officer was directed to complete the assessments and produce copies of the orders before the Court to consider whether the orders