Suo motu revisions under the KVAT Act cannot proceed while an appeal on the same issue is pending, emphasizing adherence to statutory provisions.

ORDER :

(A.K. Jayasankaran Nambiar, J.)

As the impugned order of the Commissioner of Commercial Taxes in OT. Revision No.5 of 2023 relies on the impugned order of the Commissioner of Commercial Taxes in OT.Revision No.6 of 2023, the two OT.Revision petitions are taken up for consideration together and disposed by this common judgment.

2. The brief facts necessary for the disposal of these OT. Revision petitions are as follows:

The revision petitioner in both these OT. Revision petitions is an assessee on the rolls of the State Tax Office, Fourth Circle, Thrissur. The assessment of the petitioner to tax under the Kerala Value Added Tax Act (hereinafter referred to as ('the KVAT Act') for the assessment year 2012-2013 was initially completed by an assessment order dated 05.06.2014. In an appeal preferred by the petitioner before the First Appellate Authority on the issue of claim for sales returns, the First Appellate Authority, by an order dated 01.09.2015, modified the assessment order in relation to the said issue and remanded the matter to the Assessing Authority for a fresh consideration of the said issue. The modified order of the Assessing Authority on the issue of sales return was passed on 20.10.2016, where the Assessing Authority accepted the claim of the assessee. The said modified order was, however, subjected to a suo motu revision at the hands of the Joint Commissioner, who, after hearing the assessee cancelled the order dated 20.10.2016 by an order dated 26.08.2020. The Assessing Authority was, thereafter, directed to complete the fresh assessment based on the directions of the Joint Commissioner in the order dated 26.08.2020. No modified order was however passed by the Assessing Authority pursuant to the directions of the Joint Commissioner, presumably because the petitioner assessee had preferred a further revision petition before the Commissioner of Commercial Taxes impugning the order dated 26.08.2020 of the Joint Commissioner.

3. In OT. Revision No.6 of 2023, the impugned order of the Commissioner of Commercial Taxes was passed in proceedings that emanated from an order dated 18.12.2017 of the Assessing Authority, which had assessed the petitioner to escaped turnover pursuant to proceedings initiated under Section 25(1) of the KVAT Act, after the original order of assessment dated 05.06.2014 had been passed in relation to the petitioner. Against the order dated 18.12.2017, the petitioner had preferred an appeal before the First Appellate Authority, who had, by an order dated 22.06.2018, modified the order dated 18.12.2017 passed under Section 25(1). Even before a modified order could be passed by the Assessing authority based on the order of the First Appellate Authority dated 22.06.2018, suo motu proceedings were initiated by the Deputy Commissioner in terms of Section 56 of the KVAT Act for revising the order dated 18.12.2017 passed under Section 25(1) of the KVAT Act. Although the petitioner had pointed out to the Deputy Commissioner that the proceedings under Section 56 could not be initiated when an appeal had already been filed by the petitioner against the order that was sought to be revised (Order dated 18.12.2017) and the Appellate Authority had passed orders in the said appeal, the Deputy Commissioner erroneously assumed that inasmuch as the order dated 18.12.2017 was itself a consequential order passed at the instance of the High Court in proceedings that had been preferred before High Court by the petitioner assessee, a suo motu revision of the said order could be effected. This order of the Deputy Commissioner dated 10.01.2020, cancelling the order dated 18.12.2017 at the point in time when an appeal preferred by the petitioner assessee against the said order had already been decided by the Appellate Authority on 22.06.2018, was obviously in contravention of the provisions of Section 56 (2) (b) of the KVAT Act more so when the provisions of Section 56 (3) of the Act had no application to the facts of