MOHAMMAD AMINA Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is the 4th time that the petitioners in this petition have come before this Court in relation to the assessments to agricultural Income-tax on them under the Agricultural Income Tax Act, 1950 (hereinafter referred to as the Act) for the two years 1958-59 and 1959-60. On the first occasion by judgment in O. P. Nos. 701 and 923 of 1961 Vaidialingam, j. allowed the original petitions 701 and 923 of 1961 and set aside the assessment orders. The subsequent assessment orders made for the years were set aside by Mathew J. by judgment in O. P. No. 889 of 1963. Thereafter Exts. P1 and p2 assessment orders were passed for the two years and those orders were set aside by one of us by judgment in O. P. No. 2067 of 1965 on the ground that the assessments were made beyond the period provided by sub-s. (2) of S. 35 of the act and that the second proviso to that sub-section did not apply. S. 35 (2) was introduced into the Act by Act 12 of 1964 with effect from 14 58. We shall extract S. 35 (1) without its provisos and sub-s. (2) of S. 35 with the second proviso. "35 (1 ). If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income-tax Officer may, at any time within three years, of the end of that year serve on the person liable to pay the tax or in the case of a company on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub s. (2) of S. 17 and may proceed to assessor reassess such income and the provisions of this Act shall so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. (2) No order of assessment under S. 18 or of assessment or reassessment under sub-s. (1) of this section shall be made after the expiry of three years from the end of the year in which the agricultural income was first assessable-Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under S. 19 or to an assessment or reassessment made in consequence of, or to give effect to any finding or direction contained in, an order under S. 31, S. 32 S. 34 or SM. "

(2.) THE assessments that have been made against the petitioner were not after the issue of notice under S, 35 (1) and were not assessments or reassessments made under S. 35 (1) as contemplated by that sub-section. THE assessments were under S. 18 of the Act. Even so sub-s. (2) of s. 35 would apply because the period of three years provided by that sub-section applied, as is stated clearly in the section, to assessments under S. 18 as well. THE only question that arose for decision in O. P. No. 2067 of 1965 (judgment is Ext. P3) was whether the second proviso to sub-s. (2) of S. 35 would save the assessment orders, impugned by that petition, namely Exts. P1 and P2 here. It was held that the proviso will not apply to cases where the assessments were not made pursuant to directions "in consequence of, or to give effect to any finding or direction contained in, an order under S. 31, s. 32, S. 34 or S. 60". An assessment made pursuant to a direction contained in the judgment in O. P. No. 889 of 1963 cannot fall under the proviso and therefore the extension must be within three years of the close of the year of assessments. THE orders of assessments having been made beyond that period were set aside.

(3.) WE think therefore whatever be the intention in introducing S. 8 by Act 15 of 1970 that it does not achieve the object of validating the assessment orders that have been made under S. 18 and which have been set aside by a competent court in exercise of its jurisdiction. S. 8 (1)not being attracted, the quashing of Exts. P1 and P2 will have to stand and the demand made for the payment of tax under those orders by Ext. P4 cannot be sustained.