A Deputy Commissioner can order reopening of assessments under CST Act Section 9(2A), without invalidating prior assessment orders, ensuring due process is followed.

O R D E R

S.V.Bhatti,J.

Heard Mr.P.Raghunathan learned counsel for the petitioner and Mr.Shamsudheen V.K learned Sr. Government Pleader for the respondents.

2. The O.T. Revisions are directed against the order dated

11.12.2017 of the Commissioner of State Goods and Service Taxes, Thiruvananthapuram. The circumstances leading to the present controversy are same and the counsel appearing for the parties would suggest that O.T. Revision No.18/2018 could be treated as lead case both for narrating the circumstances and considering the points raised by the parties. The outcome would apply to the other cases as well.

O.T. Revision No.18/2018

3. M/s. Malikkan Traders is a registered dealer under the Central Sales Act, 1956 (for short, ‘the CST Act’). For the years 2011- 12 and 2012-13, assessments under the CST Act were completed by the first respondent vide orders dated 26.09.2015 and 26.10.2015. On 21.07.2017, the Deputy Commissioner, Commercial Taxes, Kannur issued show cause notice under Section 9 (2A) of the CST Act proposing to reopen the assessment for the years 2011-12 and 2012-13. The petitioner was heard by the Deputy Commissioner, resulting in the order dated 22.08.2017. The Deputy Commissioner directed Assistant Commissioner, Special Circle, Kannur to reopen the assessment, since the original order of assessment is prejudicial to the interest of Revenue. The petitioner, against the order dated 22.08.2017, went in revision before the Commissioner of State Goods and Service Taxes, Thiruvananthapuram. The Commissioner through the order impugned in the revision rejected the revision filed by the petitioner. Hence the O.T. Revision under Section 63 (1)

of Kerala Value Added Tax Act, 2003 . (for short, ‘the KVAT Act’) 4. Adv.P.Raghunathan argues that the Deputy Commissioner does not have the power to set aside the assessment completed by the Assistant Commissioner, Special Circle, Kannur vide order dated 26.10.2015 on the ground that the Deputy Commissioner lacks the power of suo moto revision against the order of assessment. He argues that the officers designated under the KVAT Act are enabled by provisions in the CST Act to discharge the duties and functions of the CST Act as well. The CST Act does not provide for suo moto revision against an order of assessment. Interest and penalty were levied under the CST Act; the Supreme Court held that in the absence of power and jurisdiction, levy of interest or penalty is illegal. He relies on a few judgments which we refrain from adverting to. These judgments for the circumstances on hand are different from the circumstances considered and the ratio laid therein. The learned counsel with considerable force at his command tried to contend that the orders of Deputy Commissioner are per se illegal could not, by referring to the circumstances/record of the case, establish the foundation for the legal argument. The crux of the argument is that the assessment orders dated 26.09.2015 and 26.10.2015 are set aside by the order of the Deputy Commissioner dated 22.08.2017, which action per se is illegal, without jurisdiction, and liable to be interfered with.

5. Mr. Shamsudheen V.K appearing for respondents invites the attention of the Court to Section 9 (2A) of the CST Act and argues that (2A) as it is stood then deals with levy and collection of tax and penalty. In the case on hand, the short recovery of tax is on account of fabricated C forms produced by the dealer. The said aspect is a matter of enquiry before the authorities. The Deputy Commissioner merely directed to reopen the assessment of dealer for the subject years. Unless and until reassessment takes place, after notice is issued to the dealer and procedure followed, it cannot be contended that through the order directing reassessment, the original assessment orders dated 26.09.2015 and 26.10.2015 are set aside. He invites our attention to the following paragraphs in the orders:

Annexure-V Order No. B2-675/16(1) dated 22.08.2017.

In exerc