VALLY ESTATE Vs. INCOME TAX OFFICER ADDL AGRL

JUDGEMENT

(1.) The order of assessment to tax under the Agricultural Income Tax Act, 1950 (the 1950 Act) made on the petitioner for the assessment year 1980-81, was taken up in suo motu revision under S.34 of the Act by the Commissioner of Agricultural Income Tax, Thiruvananthapuram (the Commissioner, for brevity). After hearing the assessee petitioner, the Commissioner passed order dated March 30, 1991, a copy of which is Ext. P10, revising the order of assessment. Being aggrieved by the said order, petitioner applied for reference to this court for its opinion, of certain questions of law stated to arise therefrom, under S.60 of the 1950 Act. A copy of the application is Ext. P11 dated August 9, 1991. By that time, the 1950 Act had been repealed and replaced by the Kerala Agricultural Income Tax Act, 1991 (the 1991 Act) which came into force on April 1, 1991. S.76 of the 1991 Act corresponds to S.34 of the 1950 Act and confers power on the Commissioner to exercise suo motu power of revision in respect of orders passed by subordinate authorities which are considered prejudicial to the revenue. But wide departure was made in the matter of the remedy available to an aggrieved assessee against the order in revision of the Commissioner. While under the 1950 Act he had to seek reference to this court for its opinion of any questions of law arising out of the order of the Commissioner, he was afforded, by S.78 of the 1991 Act, the remedy of approaching this court direct by way of revision petition on the ground that the Commissioner had either erroneously decided or failed to decide any question of law. Since the 1950 Act stood repealed by the time the application for reference was made, the Commissioner entertained doubt about its maintainability, and eventually, and after affording an opportunity to the petitioner to be heard, he rejected the application as not maintainable by the order Ext. P14 dated 9-11-1991. According to him, the petitioner's remedy was to approach this court by way of revision under S.78 of the 1991 Act. The question is whether this view of the Commissioner is correct. The petitioner questions this view and reiterates that the remedy available to him was that under S.60 of the 1950 Act, the revisional order under S.34 having been passed on 30-3-1991 before the 1991 Act came into force.

(2.) S.99(1) of the 1991 Act repeals the 1950 Act, but the proviso thereto state that the repeal shall not affect the previous operation of the 1950 Act, or any right, title, obligation or liability already acquired, accrued or incurred thereunder and, subject thereto, anything done or any action taken, including any order passed in the exercise of any power conferred by or under the 1950 Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under the 1991 Act as if this Act were in force on the date on which such thing was done or action was taken. As to what is the proper remedy of the petitioner has to be decided with reference to this repealing provision. S.99(1) is clear and specific that the repeal will not affect the previous operation of the 1950 Act or any right, obligation or liability already acquired, accrued or incurred thereunder. It is only subject to this that anything done or any action taken under the said Act is deemed to have been done or taken under the 1991 Act.

(3.) So far as the order Ext. P10, which was passed on 30-3-1991, is concerned, the remedy of the petitioner under 1950 Act was to move for reference to this court of any questions of law arising therefrom, under S.60 of the said Act. That remedy stood attracted as soon as the order Ext. P10 was passed, on 30-3-1991 when the law in force was the 1950 Act. In other words, the remedy of seeking a reference to this court under S.60 of the 1950 Act accrued to the petitioner on 30-3-1991, with a corresponding right on the respondent not to have the order challenged except in accordance with the procedure prescribed by the 1950 Act. This right of either party which had accrued on the order being passed, is not taken away by anything stated in the repealing provision, in as much as the deeming provision referred to earlier in the proviso to S.99(1) is specifically subject to rights or obligations accrued or incurred under the 1950 Act.