THAYYIL PLANTATIONS Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) Is it permissible for the Agricultural Income Tax Officer exercising his power to rectify mistakes under S.36 of the Agricultural Income Tax Act, to alter the status of a registered firm to that of unregistered firm This is the principal question raised in this petition under Art.226 of the Constitution of India.

(2.) M/s Thayyil Plantations, a firm registered as an assessee under the Agricultural Income Tax Act, impugns the validity of the orders dated 19th December 1987 (Ext. P-5 to this petition) made by the Agricultural Income Tax Officer and the Revisional order of the Commissioner of Agricultural Income Tax, dated 6th June 1989 (Ext. P-13); the respondent Nos. 1 and 3 respectively, whereby the status of the petitioner's assessment as "registered firm" was altered to that of "unregistered firm". The orders were made under S.36 of the Agricultural Income Tax Act, 1950 (Act XXII of Kerala), hereinafter referred to as "the Act".

(3.) The firm came into existence on 1st April 1981 with 15 partners. The assessments for agricultural income tax for the years 1982-83 to 1986-87 were made on the basis that the petitioner is a registered firm. The assessment order for the year 1986-87 (Ext. P-2) expressly records that the petitioner is a partnership firm registered under S.27 of the Act and that it was assessed on that basis. The respondent No. 1 discovered that one of the 15 partners, Dr. Sara Mammen, who was then out of India, had not signed the application for renewal of registration of the firm personally but was signed by her constituted attorney. Therefore on 3rd August 1987 he issued a notice No. T-25/86-87 (Ext. P-3) in which the respondent No. 1 stated that a mistake had crept into the order of assessment dated 3rd November 1986 (Ext. P-2). The mistake was in the "status assigned" to the petitioner as registered firm. In his opinion the application was not signed "by all the partner's personally". The respondent No. 1 by his order dated 19th December 1987 (Ext. P-5) held that the application for renewal of the registration "is invalid and so the status assigned namely, registered firm is incorrect". He therefore rectified the mistake under S.36 of the Act and assigned to the petitioner the status as an unregistered firm, and reassessed the tax On that basis. A notice of demand dated 1st January 1988 (Ext. P-6) was received by the petitioner. It is thereafter that the petitioner filed an appeal to the respondent No. 2 (Ext. P-7). The petitioner apprehended that the respondent No. 1 may urge in the appeal that the order of assessment is an order under S.36 and therefore, out of abundant caution they also filed a revision petition before the respondent No. 3 (Ext. P-8). On 21st January 1988 the petitioner filed an application (Ext. P-9) before the respondent No. 1 urging that they should not be treated as defaulters until the appeal is disposed off. The application dated 21st January 1988 (Ext. P-9) was pending when this petition was filed. The petitioner filed O.P. No. 880/88-D before this court seeking a writ of mandamus directing the respondents 2 and 3 to consider and dispose off their application dated 21st January 1988 (Ext. P-9). The Original Petition was disposed off on 3rd February 1988 with a direction that the respondent No. 2 shall dispose off the petitioner's appeal (Ext. P-7) expeditiously. This court directed that pending disposal of the appeal (Ext. P-7) the reassessed tax shall not be recovered. The petitioner's revision petition (Ext. P-8) was dismissed on 6th June 1989 (Ext. P-13).