ABRAHAM Vs. AGRL I T O NEDUMANGAD

JUDGEMENT

(1.) The petitioner is an assessee to agricultural income tax. He was assessed to agricultural income tax for the year 1980-81 by Ext. P1 order dated 15-12-1981. In the said order the income received from the property standing in the name of the wife of the petitioner was also included. It is the case of the petitioner that this property about 8 70 acres of rubber plantations belongs to his wife, Mrs. Leelamma, and the income thereof should not be included in assessing him to agricultural income tax. In Para.2 of the Original Petition the petitioner specifically states that this writ petition is concerned with the assessment year 1980-81. Even so, the petitioner has in the prayer portion of the Original Petition, Para.11, impugned Exts. P3 and P4 orders also. Ext. P3 is an appellate order passed by the Appellate Assistant Commissioner in the case of the petitioner for the years 1976-77 to 1980-81. The assessment made for the year 1980 81 as per Ext. P1 order was confirmed in Ext. P3, is so far as the assessment included the income from the properties standing in the name of the wife. Ext. P4 is an order passed by the Deputy Commissioner in revision. The revision petition filed by the petitioner was dismissed. The petitioner prays for quashing Exts. P1, P3 and P4 orders. The validity of Ext. P3 need be considered only in so far as it relates to 1980-81. (Paragraph 2 of O.P.).

(2.) The petitioner's counsel argued that the inclusion of income of 8.70 acres of rubber plantation, which admittedly stands in the name of his wife, is incompetent and not permissible under S.9(2) of the Agricultural Income Tax Act. It is argued that there is no specific finding to attract S.9(2) of the Act. S.9(2) of the Act will not apply. It has not been shown that there was a transfer of the property either directly or indirectly to the petitioner's wife. In effecting the assessment for the year 1980-81 by Ext. P1 order, the Agricultural Income Tax Officer has stated that the inclusion of the income from the properties in the name of the petitioner's wife was already considered at the time of previous years' assessments and so that affords a basis for him to include the said income for this year also. This has been upheld in revision (P4). The said order is liable to all the infirmities attached to Ext. P1. Counsel for the Revenue sought to sustain Exts. P1 and P4 both on merits and on the ground that the findings in the prior years are relevant and good and until they are shown to be unjustified, the Revenue can rely on the findings entered on identical questions of fact or law, in later years. A detailed consideration, in later years, is uncalled for. The counsel for the Revenue submitted further as follows: In Ext. P3 appellate order, (from 1976-77 onwards) the Appellate Assistant Commissioner, has categorically found that the Revenue found on enquiries, that the petitioner's wife had no source of income, much less an independent source of income, and the Agricultural Income Tax Officer on an evaluation of the facts and circumstances found in the previous years' assessments that the properly, 8 70 acres of rubber plantation, could have been purchased only with the funds belonging to the petitioner. It was on this basis, the Revenue included the income from that property along with the agricultural income of the petitioner. The finding on that score for the previous years 1976-77 to 1979-80 were consistent in this regard. Even the appellate order, Ext. P3, which is a consolidated order for 1976-77 to 1980-81 was rendered as early as 31-5-1982 more than an year before the filing of the Original Petition. The petitioner could have filed second appeals from Ext. P3 order for the years 1976-77 to 1979-80 and also 1980-81. The petitioner did not do so. The statute has provided an equally efficacious remedy to assail the appellate order for the years 1976-77 to 1980-81 by filing a second appeal. The petitioner did not avail that remedy. It is too late for him now to impugn the order more than one year after the passing of the said order in proceedings under Art.226 of the Constitution. There is no violation of the principles of natural justice in this case, nor is there any attack of any provision of the Act or Rules. In such circumstances, the petitioner is not entitled to invoke Art.226 of the Constitution of India to assail Ext. P3 proceedings. That apart, for the year 1980-81 the petitioner filed a revision petition. It was dismissed. It has been categorically found that from 1976-1977 onwards, identical plea was considered and the Revenue consistently found that the income from the property standing in the name of the wife is also includible in assessing the petitioner. The above submissions of the Revenue are entitled to great weight. It is true that the findings of fact rendered for the previous years 1976-77 to 1979-80 cannot be said to be conclusive or final. There is no question of res judicata, either. But all the same, it is settled law that when a particular question of fact or law is decided in one year and the identical matter or question comes up for consideration in the subsequent year, the decision rendered in the previous year will be certainly "good and cogent evidence" in the subsequent year, when similar question falls to be determined. (See the decision of the Supreme Court in M. M. Ipoh and others v. Commissioner of Income Tax (67 ITR 106 at p. 118). In E v. Koradu v. Commissioner of Agricultural Income Tax ((1980) 122 ITR 615) the inclusion of the income from the property standing in the name of the wife, as the income of the assessee, was upheld by the Appellate Tribunal, for the years 1964-65 and 1965-66. The identical matter came up for consideration in the year 1968-69. The earlier decision was relied on and the income from the property standing in the name of the wife was again included in the assessee's income and upheld by the Appellate Tribunal. In a reference at the instance of the assessee, this was assailed. Chief Justice Sri. V.P. Gopalan Nambiyar speaking for the Bench held at page 618 of the report:-

(3.) The only other plea made by the counsel for the petitioner is that the income estimated is arbitrary. It is common ground that the petitioner did not maintain proper accounts. He was not able to substantiate the returns. The situation called for an 'estimate' being made. The Agricultural Income Tax Officer on the basis of previous records and other attendant circumstances made an estimate. It is open to him to do so. It is settled law that in all estimates, some element of arbitrariness is inevitable. On perusing through Ext. P1 assessment order, I am unable to accept the plea that the order of assessment is so unreasonable or arbitrary as to transgress the limits imposed by law. It is settled law, that in making an estimate or best judgment assessment, it is the decision of the assessing authority that is crucial. It has not been shown that the estimate made by the Agricultural Income Tax Officer is not in accordance with law. Be that as it may, the quantum fixed on such estimate, is a pure question of fact. The Appellate Authority as well as the revisional authority considered the matter in detail. It is not for this court, in exercise of the extra ordinary jurisdiction under Art.226 of the Constitution of India, to conduct an enquiry with regard to the quantum and make its own estimate in the matter. This being a pure question of fact, the petitioner's contention should fail.