KOCHANDI A A Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) Though the assessee, father of petitioners 1 and 2 and husband of the 3rd petitioner filed the return on 24-9-1971 in respect of his agricultural income for the year 1971-72, the assessment was not completed till he died on 4-11-1972. After his death a preassessment notice was issued to petitioners 1 and 2 by post. This was not served on them and was returned. Notice was therefore forwarded to the 3rd respondent Village Officer of the Village in which the cardamom estate of the deceased is situated. According to the 1st respondent, Additional Agricultural Income Tax Officer, the Village Officer did not find the above persons (petitioners 1 and 2) and so he served them by affixture on 3-3-1973. No other circumstances relating to the said service by affixture are available in this case. The first respondent appears to have completed the assessment thereafter; according to him, he sent the assessment order and demand notice by registered post, and these were returned with the endorsement that petitioners 1 and 2 refused to accept them. Petitioners deny that they so refused, their case being that no such order or notice was taken to them at Madurai where they are permanently residing and doing business. It is their case that they came, to know of the assessment proceedings only when cardamom crops in the estate were attached under the Revenue Recovery Act, 1958. Exts. P1 and P-3 are copies of notices, issued under S.7 and 34 of that Act, and Ext. P-2 is the copy of attachment mahazar.

(2.) It is contended that the pre-assessment notice issued to petitioners 1 and 2 through the Village Officer and served by affixture was not served on them as if it were a summons issued by a court under the Code of Civil Procedure as required by S.64 of the Agricultural Income Tax Act, 1950, (in short, the Act) and that a best judgment assessment without affording them any opportunity to explain the materials relied on by the first respondent is invalid as violative of rules of natural justice. It is also argued that assessment proceedings with notice only to two out of the three legal representatives of the deceased assessee could not bind the estate of the deceased. It is not disputed before me by the learned Government Pleader that an assessment without giving opportunity to the assessee (or his legal representatives) to meet the case on which the 1st respondent, rejecting the return, proposed to complete the assessment, is illegal and possibly he could not, in view of the decision of this court in Kunhammad Haji v. State, 1960 KLT 930 and the decisions following it; the case of the first respondent is that an opportunity was given by service of the preassessment notice by affixture. However, there is no case before me that that notice was served as if it were a summons issued by a court under the Code of Civil Procedure. On the other hand the argument advanced by the learned Government Pleader is that any notice could be served in some manner other than that provided for in S.64 of the Act. In other words, the argument is that S.64 of the Act is not exhaustive as regards the manner of service of notices and requisitions under the Act. To meet the second contention the learned Government Pleader relies on the principle of substantial representation.

(3.) Taking up the 1st point; the question whether S.64 of the Act is exhaustive or not was considered by a Division Bench of this Court to which I was a party in ITR. Nos. 119 and 120 of 1971 (Agrl). Therein on behalf of the Bench I had occasion to say as follows: