TESSY KURUVILLA Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner is an assessee to agricultural income-tax. For the year 1976-77, she was assessed to agricultural income-tax by Exhibit P-l, order dated June 6, 1979. THE order was passed under Section 18(4) of the Kerala Agricultural Income-tax Act, 1950, since the petitioner neither filed the return nor filed, any objections to the pre-assessment notice. THE revision filed before the 2nd respondent was dismissed by Exhibit P-2, order dated October 22, 1981. According to the petitioner, both Exhibits P-1 and P-2 orders are illegal and violative of natural justice. Before passing Exhibit P-l assessment order, the objections filed by her were not considered. Before passing Exhibit P-2 order, no notice was served on her and she was not heard. No sufficient opportunity was afforded to the petitioner to produce relevant documents. In this original petition, the petitioner assails Exhibits P-1 and P-2 orders. THE petitioner also attacks Section 34, 2nd proviso, to the Agricultural Income-tax Act as ultra vires and violative of Article 14 of the Constitution of India. It is stated that there is no obligation for the revisional authority to hear the petitioner before passing an order in revision. In the revision, no prejudicial order shall be passed without hearing the petitioner or giving her reasonable opportunity. But an order declining to interfere shall not be deemed to be prejudicial to the assessee. So, when an order is passed in revision declining to interfere, the assessee need not be heard or given an opportunity for being heard. THE asses-see has no right to resort to, this court under Section 60(2) of the Agricultural Income-tax Act in view of Section 34, second proviso, and Section 60(2) of the Act. This is ultra vires and violative of "fair hearing' and Article 14 of the Constitution of India.

(2.) ON behalf of the respondents, a detailed counter-affidavit has been filed dated 10th April, 1984. Exhibits P-1 and P-2 orders are sought to be sustained on the ground that they were passed after due notice and opportunity given to the petitioner and the assessment was completed under Section 18(4) of the Act in view of the default committed by the petitioner. It is also definitely stated in paragraphs 3 and 4 of the counter-affidavit that many opportunities were afforded to the petitioner and she did not avail of the same. The contention that no reasonable opportunity was afforded to the petitioner before rendering Exhibits P-1 and P-2 is without force. It is also denied that the 2nd proviso to Section 34 of the Act is ultra vires or violative of Article 14 of the Constitution of India.

(3.) IT is true that the jurisdiction vested in the Commissioner under Section 34 of the Act is a discretionary one. The Commissioner exercises a quasi-judicial function. He has to exercise the power in accordance with law. Dwarka Nath v. ITO, 1965 57 ITR 349 (SC). The Commissioner is not bound to interfere, if the order attacked is "in accordance with law". Even otherwise, the Commissioner may refuse to interfere in a case where, for reasons stated, the assessee has disentitled himself to assail the order impugned or to get the relief at the revisional stage by his own conduct This is so because the power to revise is discretionary. IT is true that before passing the order against the assessee, he will be given an opportunity for being heard as provided by the first proviso to Section 34 of the Act. That is in accord with the principles of natural justice. The second proviso only provides that if a revision is rejected, it shall not be deemed to be an order prejudicial to the assessee. The said proviso should be read along with Section 60(2) of the Act. The effect is only to a limited extent it will not be open to the assessee to invoke Section 60(2) of the Act, and to initiate any proceeding for reference to the High Court of any question of law, where the Commissioner merely confirms the orders of the subordinate authority and refuses to interfere in the matter. That is implicit in the context of the revisional jurisdiction. Nothing that is contained in the second proviso to Section 34 of the Act abrogates the provision for hearing or reasonable opportunity to be afforded to the assessee under Section 34(1) of the Act. So, understood I fail to understand how the second proviso to Section 34(1) of the Act is ultra vires or violates Article 14 of the Constitution of India. I reject the plea of the petitioner.