COMMISSIONER OF AGRICULTURAL INCOME TAX Vs. ALEKUTTY GEORGE

JUDGEMENT

(1.) At the instance of the Revenue, the Kerala Agricultural Income tax Appellate Tribunal, Additional bench, Kottayam has referred the following questions of law, under S.60(1) of the Agricultural Income tax Act, for the decision of this Court:

(2.) The respondent was assessed for and on behalf of her late husband for the years 1973-74,1974-75 and 1975-76,by orders dated 31-3-1979, 28-3-1980 and 10-3-1981. On scrutiny, it was found that the yield estimated, from some property was lower than that conceded by the assessee. The assessment orders for the years 1973-74 and 1975-75 were rectified by the Agrl. Income tax Officer, under S.36 of the Act, by order dated 23-4-1981. Similarly, certain other errors which had crept in the assessment orders, for all the three years, were rectified as per a common order dated 4-1-1982, under S.36-of the Act, by the Agrl. Income tax Officer. The rectified assessment orders were challenged by the assessee in first appeals before Appellate Commissioner of Agrl. Income tax and Sales tax. By order dated 26-3-1987, he rejected the appeals. He held that the orders were passed under S.36 of the Act and no appeal would lie against such an order. The matter was challenged in second appeals by the assessee. The Appellate Tribunal, by its common order dated 14-3-1988, held that the orders passed under S.36 have to be read with the original orders passed under S.18 of the Act and so viewed the orders passed under S.36 of the Act can be treated only as part of the original orders and so the orders are appealable. The decision rendered by the Appellate Assistant Commissioner was reversed. The matter was remitted to him for a fresh disposal. It is aggrieved by this common order passed by the Appellate Tribunal, dated 14-3-1988, holding that the appeals filed before the Appellate Assistant Commissioner are maintainable, the Revenue filed applications before the Tribunal for referring certain questions of law for the decision of this Court and accordingly the questions, formulated herein above, have been referred by the Agrl. Income tax Appellate Tribunal, for the decision of this Court.

(3.) We heard counsel. In the light of the decision of the Supreme Court in S. Sankappa v. Income tax Officer (68 ITR 760), the proceedings taken for rectification of assessment to tax under S.36 of the Agrl. Income tax Act should be held to be "proceedings for assessment". The above decision was followed by the Supreme Court in Kishanlal Haricharan v. I.T.O. (86 ITR 141). The legal effect flowing from an order passed rectifying the original assessment came up for consideration before the Supreme Court in International Cotton Corporation (P) Ltd. v. Commercial Tax Officer (35 STC 1). Delivering the judgment of a four member Bench, Alagiriswami, J. at page 12 of the report, stated that the law thus: