RAMACHANDRAN PILLAI A S Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE tax revision cases have been presented under Section 78 of the Kerala Agricultural Income-tax Act, 1991.

(2.) THE petitioner is an assessee under the provisions of the Agricultural Income-tax Act. THE assessment years involved are 1970-71 and 1971-72. THE original assessments in these cases were completed by the assessing authority as per orders dated June 13, 1972, assigning the status as "registered firm". Subsequently, the Commissioner of Agricultural Income-tax and Sales Tax in exercise of the powers under Section 34 of the Act cancelled the original assessments assigning the status as "registered firm". Consequently, the Commissioner directed the assessing authority to modify the assessments assigning the status as "unregistered firm". Pursuant to the direction issued by the Commissioner revised assessment orders assigning the status as "unregistered firm" were passed. THEse revised assessment orders were challenged in first appeal before the Appellate Assistant Commissioner by the assessee. THE Appellate Assistant Commissioner accepting the contentions urged by the assessee, directed the assessing authority to modify the assessments assigning the status as "registered firm". It is against the said order, the Revenue filed appeals before the Sale's Tax Appellate Tribunal. THE Tribunal observed that the order passed by the Commissioner under Section 34(1) has become final and conclusive inasmuch as the petitioner has not filed any reference as required under Sub-section (2) of Section 34. THE Tribunal further found that the appeal as against the revised assessment order is not competent. In that view of the matter, the appeals were allowed by the Tribunal. THE order of the Appellate Assistant Commissioner was cancelled and the order of the assessing authority was restored to operation. It is against the said common order passed by the Tribunal that these tax revision cases have been filed.

(3.) AS far as the second question is concerned the Tribunal observed that the order passed by the assessing authority pursuant to the direction given by the Commissioner in exercise of powers under Section 34(1) is not an appealable order. The reason given by the Tribunal is that no lawful distinction can be made between the order passed by the Commissioner under Section 34 and the subsequent revised assessment order passed by the assessing authority to give effect to the direction issued by the Commissioner. According to the Tribunal from the order passed by the assessing authority pursuant to a direction given by the Commissioner an appeal is not competent before the Appellate ASsistant Commissioner. Section 31 deals with appeal against assessment. The said provision prescribes that any assessee objecting to the amount of income assessed or tax determined or loss computed under Section 18 or denying his liability to be assessed under the Act or objecting to any order under any of the provisions of Sections 19, 20, 21, 25, 29, and 41 made by the Agricultural Income-tax Officer or to the cancellation by him of the registration of a firm or to the refusal to register a firm may appeal to the ASsistant Commissioner against the assessment or against such order. What the main part of the said provision says is that any assessee objecting to the amount of income assessed or tax determined or loss computed. AS a consequence of treating the assessee as "unregistered firm" the amount of income has to be determined in accordance with the provisions of the Act. In the present case, the order passed by the assessing authority treating the assessee as "unregistered firm" is an order under Section 18 of the Act. The assessee can very well object to the quantum of tax or fixation of income if any such objection is available. In this case the status of the assessee had been concluded by reason of the order of the Commissioner. But if the assessee had any other objection apart from the status the same can be adjudicated in appeal under Section 31. That opportunity is always there to the aggrieved assessee. Therefore, the view expressed by the Tribunal that no appeal is maintainable against the order passed by the assessing authority pursuant to the direction issued by the Commissioner cannot be said to be correct. We, therefore, hold that an appeal in the present set of facts is maintainable under Section 31 of the Act as against the order passed by the assessing authority assigning the status prescribed by the Commissioner in exercise of the power under Section 34 of the Act: