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2013 (5) TMI 259 - HC - VAT and Sales TaxSuppression of turn over - Contention raised by assessee that Ext.P3 notice proposing suo motu revision was issued invoking power under Section 37 of the KGST Act thus if a penalty order issued under Section 45A is to be revised, the power that can be invoked is under Section 45A(5) only - Held that:- Section 37 of the KGST Act empowers the Commissioner to suo motu call for and examine any order passed by any officer or authority subordinate to him other than Appellate Assistant Commissioner, which in his opinion is prejudicial to revenue and he may make such enquiy or cause such enquiry to be made and subject to the provisions of the Act, may pass orders thereon. An order passed under Section 37 is appealable to this Court under Section 40 of the Act also. In a proceedings under Section 45A, if the order is to be revised by the Commissioner suo motu. However, the fact a wrong provision has been quoted in Ext.P3 notice or Ext.P4 order, by itself, will not invalidate the proceedings conclude against the petitioner. In this case, the petitioner has not been able to prove before this court that any prejudice has been caused to him on account of the wrong quoting of the provision. If that be so, the fact that Section 37 has been mentioned in Ext.P3 or P4, does not result in nullification of the orders. Grounds mentioned in Ext.P4 are not the reasons mentioned in Ext.P3 notice therefore petitioner was incapacitated in producing the documents to substantiate his defence against the finding - Held that:- A reading of Ext.P4 order shows that the petitioner has been found to have resorted to clandestine transactions mainly relying on delivery notes and relevant forest passes. None of these documents were relied on in Ext.P3 and therefore the findings in the aforesaid respect arrived at in Ext.P4 were without putting the petitioner on notice in respect of those issues. In such circumstances, counsel for the petitioner is justified in contending that the petitioner was seriously prejudiced in his defence. For that reason petitioner view is to be accepted and therefore set aside Ext.P5. However that will not absolve the petitioner from the liability to be proceeded against under Section 45A(5) of the Act. Ext.P4 will be treated as a notice and the petitioner will file his reply to Ext.P4 within 4 weeks from today and on filing reply as above, the first respondent will issue notice to the petitioner, afford him an opportunity of hearing and to produce documents.
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