C.N. Ramachandran Nair, J.
1. Petitioner is a dealer in timber registered under the Kerala General Sales Tax Act, 1963 hereinafter called 'the Act'. When the place of business of the petitioner was inspected on January 16, 1991 substantial shortage of stock of timber-logs was noticed. Thereafter enquiry was conducted and based on the same penalty at double the amount of tax, that is, Rs. 26,200 was levied under Section 45A of the Act for attempted evasion of tax on the suppressed value of goods estimated at Rs. 2,10,000. Even though inspection was carried out and stock noticed was recorded in the inspection report, that is mahazar, the Deputy Commissioner in the revision filed by the petitioner against the penalty order observed that there could be omission on the part of the inspecting team to notice availability of physical stock of timber, and therefore he reduced the penalty to Rs. 5,000. The Commissioner of Commercial Taxes, the then Member, Board of Revenue, took up the matter in suo motu, revision under Section 45A(5) of the Act and reversed the order of the Deputy Commissioner vide exhibit P10 order by which he restored the penalty originally levied by the officer, that is, at double the amount of tax sought to be evaded. It is this order of the member of the Board of Revenue, namely, exhibit P10, which is one of the orders that is under challenge in this original petition. The other dispute raised by the petitioner is against the validity of exhibit P17 order which is a suo motu revisional order issued by the Deputy Commissioner under Section 35 of the Act, whereunder the Deputy Commissioner has interfered with the appellate order of the Deputy Commissioner (Appeals) on the ground that the said order is prejudicial to the interests of Revenue. The original assessment was completed by the assessing authority vide exhibit P13 order by which he made additions to the declared turnover based on the penalty originally levied under Section 45A of the Act, consequent upon detection of stock variation. When assessment was taken up in appeal, the appellate authority based on the first revisional order of the Deputy Commissioner in the revision filed against the original penalty order reduced the addition proportionately and directed modification of assessment vide exhibit P14 dated April 25,1994. However, in view of exhibit P10 order of the Commissioner of Commercial Taxes, issued under Section 45A(5) cancelling the first revisional order and restoring the penalty originally levied, the Deputy Commissioner of the District exercised revisional powers under Section 35 of the Act and set aside the assessment for 1990-91 modified in appeal with direction to make fresh assessment. The order so passed, exhibit P17, is also under challenge in this original petition on the ground that the Deputy Commissioner has no jurisdiction to pass orders under Section 35(1) of the Act on an issue fairly covered by exhibit P14 order of the Deputy Commissioner (Appeals).
2. The challenge against exhibit P10 order is basically on the ground of limitation. Counsel for the petitioner contended that the order of the Deputy Commissioner reducing the penalty, namely, exhibit P7, was issued on April 20, 1993 and exhibit P10 order of the Commissioner of Commercial Taxes, revising exhibit P7 was issued only on September 23, 1997 after a period of four years. According to the petitioner, even though Section 45A(5) does not provide for any limitation, the order issued beyond a reasonable period is arbitrary and time-barred. Counsel has also relied on the decisions of this Court in Nelliampathy Tea and Produce Co. Ltd. v. Commissioner of Agricultural Income-tax : [1991]190ITR227(Ker) , Teekoy Rubbers (India) Ltd. v. Commissioner of Agricultural Income-tax : [1996]219ITR615(Ker) and John v. Addl. Sales Tax Officer [2002] 3 KLT 431. Government Pleader on the other hand contended that exhibit P10 order was issued after issuing notice dated April 30, 1997, that is within four years from the date of exhibit P7. According to him, since no limitation is provided under Section 45A(5) and since suo motu proceedings were initiated within four years, and exhibit P10 order itself was issued without any further delay, the order so passed is not time barred and it should be taken as passed within a reasonable period.
3. No doubt this Court has taken the view in the decisions cited above that even when no period of limitation is provided for revision of assessment in exercise of suo motu powers, it has to be done within a reasonable period. In fact, this Court has not suggested what is 'reasonable period' for passing suo motu revisional orders and the matter has to be necessarily looked into with reference to facts of each case. It is to be noted that in the first decision cited above, the order sought to be revised under Section 34 of the Kerala Agricultural Income-tax Act was passed more than ten years back. Even after noticing a of delay of 10 years in passing a suo motu revisional order, this Court did not cancel the revisional order on grounds of limitation, but still remanded the case to the Commissioner to consider whether there is reasonable cause for delay. This Court inter alia observed as follows:
8. We should say that no question of bar of limitation arises in suo motu revision proceedings initiated under Section 34 of the Agricultural Income-Tax Act. The Act does not provide any time-limit within which the proceeding should be initiated. The power is vested in very wide terms. It is trite law that such statutory power must be exercised bona fide, reasonably, without negligence and for the purpose for which it is conferred. While it is true that no period of limitation is prescribed for initiating proceedings under Section 34 of the Act, action, if any, must be taken within a reasonable period....
4. It has to be noted in the second decision cited above that this Court was dealing with a case where revisional order was passed more than seven years from the date of original order. So far as the last decision cited above is concerned, what is stated is that in the absence of statutory period of limitation, an order should be passed within a reasonable time.
5. Counsel for the petitioner contended that under Section 45A(5) the Commissioner can exercise his revisional power suo motu or on application. According to him, the time-limit provided for an aggrieved party to file a revision under Section 45A(5) is only one month and there is no reason why the department is not bound by the very same limitation. I do not think there is any basis for this contention because revision on application by an aggrieved party is not the same as the Commissioner perusing all the orders passed by Deputy Commissioners and reversing those orders found to be prejudicial to the interests of the Revenue. In fact, the Commissioner is in charge of administration of the sales tax and allied tax laws in the State, and apart from his administrative work, large number of orders of subordinate authorities have to be perused, effect of such orders on Revenue appreciated and then proceedings are taken reversing orders that are found prejudicial to the interest of the Revenue. I feel having regard to the statutory responsibilities the Commissioner has to discharge under various tax laws, apart from his administrative work, the Legislature deliberately did not provide any strict time-frame for him to exercise suo motu revisional powers. What the Legislature has consciously avoided cannot be imposed by this Court by judicial decision. It is in this context that this Court has held that a revisional order should be passed within a reasonable time, and reasonable time will not be a static period and will vary from case to case. The very fact that in the first decision cited above, this Court did not even vacate the suo motu revisional order passed after 10 years on the ground of limitation, but only remanded the case for reconsideration based on facts of that case, only shows that test to be applied for validity of the order on the ground of limitation is whether it is issued within a reasonable period. Eventhough details are not furnished about the time taken for transmission of order by the first revisional authority to the Board of Revenue, it is on record that notice proposing suo motu revision under Section 45A(5) was issued within four years from the date of order, namely, April 25, 1994, and exhibit P10 order was issued on September 23, 1997, that is just over four years from the date of issue of order revised. Three to four years limitation period is seen provided for rectification of mistake, suo motu revisions, etc., in the Central Income-tax Act. Therefore, and particularly in the absence of any limitation provided under Section 45A(5) of the Act and in view of the observations made in the judgments above referred, I am inclined to hold that exhibit P10 order passed around four years from the date of the order revised is within a reasonable time and cannot be held to be arbitrary or beyond jurisdiction. In the circumstances, the challenge against exhibit P10 order on the ground of limitation is rejected.
6. So far as the challenge against exhibit P17 order on merit is concerned, I find that penalty originally levied and sustained vide exhibit P10 order was based on data gathered on inspection conducted in the place of business of the petitioner. The shop inspection report, or the mahazar, is signed by the Managing Partner, who has admitted the details of physical stock noted therein. The Deputy Commissioner allowed the revision filed against the penalty order on a mere assumption without any basis that physical stock remaining in the business premises might have escaped the notice of the inspecting team. The Member, Board of Revenue, rightly held that this finding of the Deputy Commissioner is without any basis and contrary to the date recorded in the shop inspection report signed by the managing partner. Therefore on merits I find the order of the Deputy Commissioner was rightly reversed by the Commissioner. Hence I uphold exhibit P10 order. So far as second issue is concerned, the question is whether the Deputy Commissioner rightly invoked jurisdiction under Section 35(1) of the Act to set aside the assessment and remand it for de novo consideration. It is seen that original assessment was completed vide exhibit P13 on November 20, 1993. However, when appeal was filed against exhibit P13 order, the appellate authority based on the revisional order of the Deputy Commissioner reduced the addition to Rs. 50,000 as against the addition of four times the suppression in the original assessment. Similarly, the addition of Rs. 10,000 on account of other omissions was also reduced to Rs. 5,000. It is conceded that no revised order was issued after exhibit P14 order in appeal issued by the Deputy Commissioner (Appeals). However, after disposal of appeal against assessment, namely, exhibit P14 on April 25, 1994, the Commissioner of Commercial Taxes issued exhibit P10 on September 23, 1997 whereunder the order of the Deputy Commissioner in revision reducing the penalty was set aside by him and the original penalty order was restored. This has no doubt changed the basis of exhibit P14 order which was issued based on the order of the Deputy Commissioner in revision against penalty vide order in RP 21 of 1992 dated April 20,1993. The Deputy Commissioner therefore vide exhibit P17 order held that the order in appeal issued by the Deputy Commissioner (Appeals) vide exhibit P14 dated April 25, 1994 is prejudicial to interests of the Revenue and therefore he set aside the same.
7. Counsel for the petitioner contended that exhibit P17 is without any authority of law as the Deputy Commissioner in-charge of the District has no authority to set aside an order in appeal issued by the appellate authority modifying the assessment. I am in complete agreement with this argument, because the basis of and extent of addition to the returned turnover was the issue directly involved in the appeal and decided by the Deputy Commissioner (Appeals) by modifying the assessment vide exhibit P7 order. The remedy for the officer, the Deputy Commissioner of the District, or the Commissioner was either to request the appellate authority to rectify exhibit P14 appellate order under Section 43 of the Act or based on exhibit P10 suo motu revisional order to file second appeal against exhibit P14 order. Section 35(1) of the Act specifically prohibits the Deputy Commissioner from interfering with any issue decided by the appellate authority in appeal, eventhough under Section 35 (2A) the Deputy Commissioner can suo motu revise assessment on issues not decided in appeal. Moreover, the Deputy Commissioner has no authority under Section 35 to suo motu revise appellate orders which in this case is issued by an officer of the same rank. He can only interfere with the assessment orders, including modified orders based on orders in appeals, but on issues not decided in appeals. In this particular case, the Deputy Commissioner has interfered with the appellate order modifying assessment on the very same issue decided in appeal which is prohibited by Section 35. Therefore exhibit P1 7 is without jurisdiction and I vacate the same. However, if second appeal is filed by the department against exhibit P14, they can pursue the same.
8. O.P. is allowed to the extent indicated above. Order on C.M.P No. 36391 of 1997 in O.P. No. 20288 of 1997(M) dismissed.