ABRAHAM MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a revision filed under Section 78 of the Kerala Agricultural Income-tax Act, 1991. The petitioner is an assessee to agricultural income-tax. He is an estate owner. He has income from rubber, coconut and arecanut in the said estate. The respondent is the Revenue. We are concerned with the assessment year 1988-89. The assessee submitted a return on August 1, 1988, showing the net income at Rs. 21,110.46. The Agricultural Income-tax Officer did not accept the return. He served a pre-assessment notice dated August 3, 1988, on the assessee and proposed to reject the return and the accounts. He also stated that the total assessable income will be estimated at Rs. 70,000. There was an inspection report dated July 30, 1988, before the Agricultural Income-tax Officer showing the relevant particulars. Though the proposal to estimate the taxable income at Rs. 70,000 was intimated to the assessee and an opportunity was afforded to him to have his say, the assessee did not file any objection. By order dated July 17, 1989, the Agricultural Income-tax Officer fixed the net income at Rs. 70,000 and imposed a sum of Rs. 25,500 as agricultural income-tax besides surcharge of Rs. 2,517. The assessee took up the matter in appeal before the Appellate Assistant Commissioner, Agricultural Income-tax and Sales tax, Cannanore. By order dated September 25, 1989, in A. I. T. A. No. 246 of 1989, the Appellate Assistant Commissioner set aside the assessment and ordered a remit. One of the questions mooted before the Appellate Assistant Commissioner was regarding the income estimated from slaughter tapping of the rubber trees. The assessee pleaded before the Appellate Assistant Commissioner that the estate was leased out to one Tharayil Joy and there was no slaughter tapping. The Appellate Assistant Commissioner observed that the assessing authority has not taken a proper decision in the matter, that he ought to have summoned and examined the lessee and that the fact that in the previous year the lease claimed was accepted is a factor to be taken into account. After the remit, the Agricultural Income-tax Officer served a notice dated March 21, 1990, on the assessee to produce relevant evidence. The assessee was asked to produce the evidence on March 28, 1990. The assessee did not produce any evidence. He pleaded for time. Thereafter, a pre-assessment notice was served on the assessee proposing to reject the returns and the accounts and also the lease deed pleaded by the assessee. The pre-assessment notice dated April 17, 1990, available at page 75 of the records, shows that the assessee was informed that the agreement pleaded between the assessee and Tharayil Joy cannot be accepted as it is against truth and that it is proposed to reject the lease deed and to fix the net assessable income at Rs. 70,000. The pre-assessment notice dated April 17, 1990, was served on the assessee. It gave an opportunity to the assessee of being heard on April 25, 1990. On that day, the assessee requested for time. Time was granted. The matter was posted to May 5, 1990. The assessee again applied for time, in view of his daughter's marriage. The Agricultural Income-tax Officer granted two weeks' time and further recorded that no further time will be granted. It is so seen from the records at page 78. The Agricultural Income-tax Officer has made a note to that effect on May 5, 1990. Though the assessee was given two opportunities to file his objections to the pre-assessment notice, he did not file any objections. It does not appear that he prayed for any further opportunity. So, the proposals contained in the pre-assessment notice were given effect to and a fresh order of assessment was passed on December 24, 1990, fixing the net income as fixed in the original order at Rs. 70,000 and a surcharge of Rs. 2,550 was fixed. After giving due credit to the amounts paid, a balance of Rs. 27,684 was demanded. The assessee carried the matter by way of revision before the Deputy Commissioner (Appeals), Agricultural Income-tax and Sales tax, Kozhikode, who, by order dated July 18, 1992, dismissed the revision. The Deputy Commissioner found that the assessee was given ample time (about 8 months' time) to produce further evidence in support of the lease deed and to file objections before completing the assessments as proposed in the notice dated April 17, 1990. Even then, the assessee did not avail of the opportunities afforded to him. After noticing the various reasons stated by the Agricultural Income-tax Officer to reject the lease deed and the failure of the assessee to lead evidence or to avail of the opportunity given to him, the Deputy Commissioner affirmed the order of assessment. The certificate of the Village Officer dated September 14, 1989, produced for the first time before the Deputy Commissioner was held to be unacceptable. It was not produced before the assessing authority and no reliance was placed thereon. Moreover, the certificate was issued long after the closure of the accounting period. The Deputy Commissioner came to the conclusion that the lease deed was executed to circumvent the provisions of law. It is against the aforesaid order of the Deputy Commissioner dated July 18, 1992, that this revision is filed under Section 78 of the Agricultural Income-tax Act, 1991.

(2.) We heard counsel for the petitioner-assessee and also counsel for the respondent-Revenue, Senior Government Pleader, Mr. V.C. James.

(3.) Prima facie, this revision filed under Section 78 of the Kerala Agricultural Income-tax Act, 1991, against the order of the Deputy Commissioner dated July 18, 1992, is not maintainable. The revisional order was passed by the Deputy Commissioner on an application filed by the assessee under Section 34 of the Act. Under the Agricultural Income-tax Act, 1950, such an order declining to interfere with the order passed by the assessing authority is not revisable by the Commissioner of Agricultural Income-tax nor can it be the subject-matter of reference to this court under Section 60 of the Act. Under Section 78 of the Agricultural Income-tax Act, 1991, a revision is maintainable against an order passed by the Commissioner of Agricultural Income-tax under Section 76, 77 or 79 (see Section 78(1)(a) and (1)(b) of the Act). The order passed by the Commissioner under Section 76 is an order passed in exercise of the revisional power suo motu. The order that can be passed by the Commissioner in revision on an application filed by the assessee is one provided by Section 77. That is a revision filed from an order passed by the Deputy Commissioner. The order that can be passed by the Commissioner under Section 79 is an order levying penalty for failure to furnish return, comply with notice, concealment of agricultural income, etc. In this case, even assuming that the Deputy Commissioner of Agricultural Income-tax and Sales Tax (Appeals) was exercising a delegated power, the said order is not one similar to the one that can be passed in exercise of the powers under Section 76, 77 or 79. If that be so, this revision under Section 78(1)(b) of the Agricultural Income-tax Act, 1991, against the order passed by the Deputy Commissioner of Agricultural Income-tax and Sales Tax (Appeals) dated July 18, 1992, is not one revisable under Section 78 of the Act by this court. We hold so. On this short ground, this revision is not maintainable.