SHEMA OOMMEN Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner in O.P. No.3224 of 1996 is the appellant. She has sought for a declaration that sub cls.(i) and (ii) of sub-s.(9B) of S.13 of the Kerala Agricultural Income Tax Act, 1991 (for short 'the Act') inserted by the Kerala Finance Act, 1994 is illegal, arbitrary and unconstitutional. She has further sought to quash Ext. P4 proceedings of the first respondent and also for direction to the said respondent to consider the appellant's eligibility for compounding without reference to other cotenant's eligibility or otherwise for payment of tax on compounded rate.

(2.) MRS . Thara Peter, Mr. Dilip Oommen, and the appellant are jointly holding 51.25 hectares of agricultural land planted with rubber. All the three had obtained the said property under Ext. P1 transfer deed dated 1.3.1982. The appellant has got 30% of rights in the property. The income from the property has been assessed under the Agricultural Income Tax Act, 1950, as tenants in common under the name and style 'Mrs. Thara Peter and others'. After the insertion of sub-s.(9B) by the Kerala Finance Act 1994 with effect from 1.4.1994 tenants in common are specifically given the right to opt compounding of agricultural income tax under S.13(9B), provided, the landed property held by that person within the State of Kerala is not extending more than 20 hectares, as provided in S.13(1) of the Act. The appellant made Ext. P2 application in Form No.1A as prescribed under the Act, seeking permission to remit the tax at the compounded rate. She also filed Ext. P3 return disclosing the tax payable before the first respondent. As per Ext. P4 proceedings dated 5.12.1995, the first respondent dismissed Ext. P2 application for compounding of the tax on the ground that the cotenants had not opted for compounding under S.13 of the Act, and therefore, the appellant is not entitled for compounding the tax under S.13(9B) of the Act. The appellant, therefore, challenged the same before the learned Single Judge, who dismissed the Original Petition, and hence this appeal.

(3.) SRI . Raju Joseph, the learned Spl. Government Pleader for the respondents, on the other hand, submitted that the normal assessment of agricultural income is as provided under S.5 to 12 of the Act and that there is no compulsion to pay the tax at the compounded rate as provided under S.13 of the Act. He further submitted that if the tenants-in-common want the benefit of S.13, they have to satisfy the conditions provided in sub-s.(9B) of the said section. The Government Pleader also submitted that the observation made by this Court in (1999) 7 KTR 128 with regard to the introduction of sub-s.(9B) as unnecessary must only be treated as an obiter. He further submitted that but for the provisions of sub-s.(9B) of S.13, the appellant would not have been entitled to apply for compounding.