JOSEPH JACOB K Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) When does an order of assessment breathe into life is the question for consideration. According to counsel for petitioner, it is when the order is communicated, and according to the Government Pleader, it is when the order is made.

(2.) Ext. P1 order of assessment, for the assessment year 1979-80 dated 1-3-85, is challenged as time barred. Pursuant to Ext. P1, a notice of demand Ext. P1(a) dated 3-6-85 was issued under S.30 of the Agricultural Income Tax Act. S.35(2) of the Act, incorporating a rule of Limitation reads:

(3.) According to counsel for petitioner, it came into effect, when communicated, in the form of demand under S.30. He relies on precedent to support this contention. A Division Bench of this court in T.R.C. 15 & 16 of 1981 held that "communication is essential for the order to become final and effective". The Supreme Court in B. J. Shelat v. State of Gujarat ( AIR 1978 SC 1109 ) held that an order takes effect only on communication. Communication could be actual or constructive. The date when communication is made, is the date of communication, and not the date on which the communication is received. Sabyasachi Mukharji, J. (as His Lordship then was) in Mohendra, J. Thacker & Co. v. C.I.T. (139 I.T.R. 793) took the view that communication is a condition precedent to an order of assessment becoming effective. Another Division Bench of this court in Bhaskaran v. Add. Income Tax Officer, Ernakulam (47 I.T.R. 334) after noticing the decision on the point observed: