TMI Blog2008 (9) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... . Answering the questions of law framed by the assessee in favour of the assessee. - S.T. Rev. No. 422 of 2004 - - - Dated:- 24-9-2008 - DATTU H.L. C.J. AND BASHEER A.K. , JJ. ORDER:- The order of the court was made by H.L. DATTU C.J. This revision petition relates to the assessment year 1991-92 under the provisions of the Central Sales Tax Act, 1956 ( the CST Act , for short). The petitioner is a firm, carrying on auction sale of cardamom brought by agriculturists and small traders. The assessee is also a dealer, registered both under the provisions of the Kerala General Sales Tax Act, 1963 ( the KGST Act , for short) and the CST Act. The original assessments under the provisions of the CST Act came to be complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is powers under section 35(1) of the KGST Act, is as under: In the circumstances, in the absence of any privity of contract for export from a foreign buyer, the purchases made by M/s. A.V. Thomas Co., from the assessee cannot be to satisfy any foreign contract (since there is no contract with AIT) and hence the sale is not in the course of export as per section 5(3) of the CST Act. As such, the exemption allowed does not appear to be in order. Hence it is proposed to cancel the assessment orders dated March 3, 1994 for 1991-92 under GST (sic) and CST completed by the Inspecting Assistant Commissioner, Agricultural Income-tax and Sales Tax, Kumily, under section 35(1) of the KGST Act 1963. Your objection, if any, against the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Kerala [1991] 81 STC 351; [1991] 1 KLT 281. The revisional authority, after considering the objections so filed by the assessee, in its cryptic order has observed as under: I have gone through their contentions and perused the records of case. It is alleged that the order dated March 3, 1994 proposed to be revised under section 35 has already been re-opened and vacated and set aside and substituted by a fresh order dated May 31, 1996 passed by the Inspecting Assistant Commissioner, Kumily himself and hence the initial order dated March 3, 1994 cannot be said to survive in any manner to any extent thereafter. Further, it is argued that the facts and allegations contained in the notice under section 35 have been duly considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revisional authority in exercise of his powers under section 35(1) of the KGST Act read with section 9(2) of the CST Act is void, irregular, illegal and improper, for the reason that the orders passed by the assessing authority dated March 3, 1994 had been re-opened by the assessing authority in exercise of his powers under section 19(1) of the KGST Act and, therefore, the original order of assessment had merged with the orders passed by the assessing authority under section 19(1) of the KGST Act. The learned counsel would, further, contend, that, when the notice came to be issued by the revisional authority in exercise of his powers under section 35(1) of the KGST Act, the original order of assessment dated March 3, 1994 was not alive an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The Deputy Commissioner shall not pass any order under subsection (1) if, (a) the time for appeal against the order has not expired; (b) the order has been made the subject of an appeal to the Appellate Assistant Commissioner or the Appellate Tribunal or of a revision in the High Court; or (c) more than four years have expired after the passing of the order referred to therein. (2A) Notwithstanding anything contained in sub-section (2), the Deputy Commissioner may pass an order under sub-section (1) on any point which has not been decided in an appeal or revision referred to in clause (b) of sub-section (2), before the expiry of a period of one year from the date of the order in such appeal or revision or before the expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the assessee, primarily on the ground of limitation. During the pendency of the appeal, the revisional authority has initiated suo motu revisional powers by issuing a notice dated September 30, 1997. In the said notice, the revisional authority has categorically stated that he intends to revise the orders of assessment dated March 3, 1994, passed by the assessing authority for the assessment year 1991-92 under the provisions of the CST Act. On the day when the revisional authority had issued the aforesaid notice, the original order of assessment dated March 3, 1994 was not in existence, in the sense, that, the said order was the subject-matter of reassessment proceedings by the assessing authority. An order, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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