N. M. KASLIWAL, J. - (1.)THE Board of Revenue by his order dated May 23, 1975, has sent the following question for the opinion of this Court under section 15 (1) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Act'):- "whether an order of the Board under sub-section (2) of Section 14 of the Rajasthan Sales Tax Act, 1954, revising a part of the order impugned by the dealer, passed before the expiry of the period prescribed in the proviso to sub-section (1) of section 14 of the said Act, operates as resjudicata in respect of all the matters covered by the impugned order. "
(2.)IT may be mentioned at the out-set that the Commercial Taxes Officer (Special Circle-I), Jaipur, had requested the Board to refer the following question of law to the High Court:- "whether under the facts and circumstances of the case the Board was justified in holding that the revision petition filed by the assessing authority is not maintainable because the order has become part of the Board's order dated 23. 2. 72 although no finding has been given by the Board on the issue raised by the applicant assessing authority. "
The Board, however, sent the question of law as mentioned above and not as requested by the Commercial Taxes Officer.

Brief facts of the case are that M/s. Rajasthan Small Industries Corporation, Sahdeo Marg, Jaipur (hereinafter referred to as 'the Assessee') has filed a revision before the Board of Revenue against the order of the Deputy Commissioner (Appeals-I) dated September 9,1970. The Board by its order dated February 23, 1972, allowed the revision in part. The Commercial Taxes Officer had also filed a revision against the aforesaid order of the Deputy Commissioner (Appeals-I) relating to the setting aside of a penalty of Rs. 6,000/- against the assessee. Whether the revision filed by the Department came up for consideration before the Board of Revenue, an objection was raised that since the order of the Deputy Commissioner (Appeals-I) dated September 9, 1970, has already become part of the Board's order dated Feb. 23, 1972, as such the revision filed by the Department was not maintainable. The Board by its order dated Sept. 2, 74, came to the conclusion that the order of the Deputy Commissioner dated September 9, 1970, had become a part of the Board's order dated February 23, 1972, and had become final and as such the revision filed by the Department was not maintainable. In view of these circumstances, the Department requested the Board to refer the question of law to the High Court and the Board by its order dated May 23, 1975, has referred the above question of law for the opinion of this Court.

In order to properly appreciate the controversy raised in the present case, it may be mentioned that the returns had been filed late by the assessee and the amount of tax of Rs. 25,000/-and Rs. 15,000/- were also deposited very late. The assessee was asked to show cause as to why action should not be taken against them under sec. 16 (1) (b) and (c) of the Act. As no satisfactory answer was given by the assessee the Commercial Taxes Officer by his order dated July 2, 1968, imposed a penalty of Rs 6,000/- under sec. 16 (1) (b), and a penalty of Rs. 2,000/- under sec. 16 (1) (c), of the Act. The assessee aggrieved against the aforesaid order filed an appeal and the learned Dy. Commissioner (Appeals I), Jaipur, by his order dated Sept. 9, 1970, set aside the order of the Commercial Taxes Officer so far as the penalty of Rs. 6,000/- under sec. 16 (1) (b) was concerned but maintained the imposition of penalty of Rs. 2,000/- under s. 16 (1) (c) of the Act. The Deputy Commissioner also considered the question of imposition of tax @ 10 per cent on the sales of stainless steal to the tune of Rs. 7,767. 42. The contention of the assessee before him was that the tax should have been imposed at the general rate of 6 per cent and the extra tax of 4 per cent imposed by the assessing authority should be remitted. The learned Deputy Commissioner, however, did not agree with the contention of the assessee in this regard and dismissed his appeal so far as assessment of tax from 10 per cent to 6 per cent was concerned. In the above circumstances the appeal filed by the assessee was allowed in part. The assessee aggrieved against the order of the Deputy Commissioner dated September 9, 1970, filed a revision in which he challenged the imposition of tax @ 10 per cent on the sales of stainless steel and also challenged the penalty of Rs. 2,000/- under section 16 (1) (c) of the Act.

The Board of Revenue heard the revision filed by the assessee and by its order dated February 23, 1972, held that the tax should have been imposed at the rate of 6 per cent instead of 10 per cent. So far as the imposition of penalty of Rs. 2,000/- under section 16 (1) (c) of the Act for late filing of returns is concerned, the order of the Deputy Commissioner was maintained.

(3.)THE Department had also filed a separate revision challenging the order of the Deputy Commissioner dated September 9, 1970, by which the penalty of Rs. 6,000/- imposed on the assessee under section 16 (1) , (b) of the Act was set aside. At the time of hearing of this revision the counsel for the assessee raised a preliminary object on that the impugned order of the Deputy Commissioner dated September 9, 1970, had come up for consideration of the Board in the revision filed by the assessee and the same has been decided by the Board on February 23, 1972, and the Board's decision had become final. THE learned Members of the Board of Revenue held that they were in agreement with the learned counsel that since the impugned order have become part of the Board's order dated February 23, 1972, and no special appeal was preferred against it, the matter could not be agitated in revision. THE Board as such by order dated September 2, 1974, dismissed the revision filed by the Department.
We may, at the out-set. mention that the proper question of law which arises out of the judgment of the Board of Revenue dated September 2 1974, should have been framed in the following manner and not in the manner as it has been referred to us by the Board in its order dated May 23,1975:- 'whether under the facts and in the circumstances of the case, the Board was justified in holding that revision petition filed by the assessing authority was not maintainable, as the order of the Deputy Commissioner (Appeals-I) Commercial Taxes, Jaipur, dated September 9, 1970, had become a part of the Board's order dated February 23, 1972, although no finding had been given by the Board on the merits of the revision. "

In order to decide the above question of law we would like to reproduce relevant portion of Section 14 of the Act which provides for filing of revision :- "14. Revision: (1) The Board of Revenue may on being moved by the assessing authority, call for and examine the records of any proceedings not being proceedings under the proviso to sub-section (3) of Section 11 under this Act and if it considers that any order is illegal or improper or arroneous it may pass such orders as it thinks fit. Provided further that the Board of Revenue shall not revise an order against which an application for revision has not been made within three years of the passing of such order. (2)- The Board of Revenue may on application for revision of an order not being an order passed under the provisos to sub-section (3) of Section 11 by a dealer under this Act made within six months of the date of the order, call for the record of the proceedings in which the order complained against was passed and after examining the record, subject to the provisions of this Act, pass such orders not prejudicial to the assessee, as it thinks fit. Provided that: an order declining to interfere shall be deemed not prejudicial to the assessee; Provided further that no revision under this sub-section shall be entertained upon the application of a dealer - - (a)- if he could have appealed under section 13 and no appeal has been filed by him, or (b)- if an appeal is pending before the appellate authority; Provided also that the Board of Revenue may admit an application for revision after the said period of six months if it is satisfied that the applicant had sufficient cause for not making the application within the said period. x x x x x x x x x x (6) No order under this section shall be passed without giving the dealer as also the authority whose order is sought to be revised or their representatives, a reasonable opportunity of being heard. " A perusal of the above provision would show that under sub-section (1) of Section 14, the Assessing Authority can file an application for revision within a period of 3 years of passing of the order sought to be revised. On the other hand, under sub-section (2) of Section 14 a dealer may move the Board for exercising its revisional jurisdiction within six months of the date of order sought to be revised. It may also be mentioned that under sub-section (2) of Section 14 of the Act, if a revision is filed by a dealer, the Board may call for the record of the proceedings in which the order complained against was passed and after examining the record, subject to the provision of this Act. could have passed such orders not prejudicial to the assessee, as it thought fit. A perusal of the above provisions clearly go to show that the assessing authority is entitled to file a separate revision under sub-section (1) of Sec. 14 of the Act if the assessing authority was aggrieved against any portion of the judgment passed against it. The Board in sub-section (1) of Section 14 of the Act on such revision was entitled to call for an examine the records i it considered that any order was illegal or improper or erroneous, it was authorised to pass such orders as it thought fit The period of limitation for filing a revision by the assessing authority has been provided as three years of the date of passing of the impugned order. Under sub-section (2) of Section 14 of the Act, the dealer has been given an independent right to file a revision within six months of the date of order and the Board was authorised to pass such orders not prejudicial to the assessee, as it thought fit. Thus, a reading of the above provisions makes it abundantly clear that in the revision filed by the assessee in the present case which came to be decided on February 23, 1972, no order could have been passed prejudicial to the assessee and as such even if the Board was of the opinion that penalty of Rs. 6,000/- was wrongly set aside by the Deputy Commissioner, no relief could have been granted to the assessing authority while deciding the revision filed by the dealer. Thus, in our opinion, the order dated February 23, 1972, by which the revision of the assessee was decided, that part of the order of Deputy Commissioner dated September 6, 1978, could not have been merged whereby the penalty of Rs. 6,000/- imposed under section 16 (1) (b) was concerned.