BENOY KURIAN Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) THE matter arises under the Kerala Agricultural Income-tax Act, 1991. THE petitioner, his brother and Mrs. Tcesa Kurian had purchased 9.81 acres of land from one Mr. Benjamin Dominic. Out of the said 9.81 acres of land 3.17 acres was purchased by the petitioner as per sale deed No. 2052 dated October 15, 1992, evidenced by exhibit P-l. Mr. Benjamin Dominic, the transferor of the petitioner, was assessed to agricultural income-tax for the years 1992-93 and 1995-1994 at Rs. 19,958 and Rs. 39,765, respectively, evidenced by exhibit P-2. For recovery of the tax due as per exhibit P-2 assessment order 1 acre out of the total extent of 3.17 acres purchased by the petitioner as per exhibit P-l was attached on February 24, 1997, as per exhibit P-3. It is stated that though the said Benjamin Dominic had received the assessment orders, he did not file any appeal or intimate the same to the petitioner and that the petitioner came to know of exhibit P-2 order only after notice of attachment of immovable property dated February 24, 1997, served on the said Benjamin Dominic which was subsequently intimated to him. It is also stated that the petitioner came to know of the assessment order and the attachment effected on the property only on June 21, 1997, from Mr. Benjamin Dominic. It is further stated that the petitioner had filed appeals against exhibit P-2 assessment order for the years 1992-93 and 1993-94 before the third respondent on June 25, 1997, evidenced by exhibits P-4 and P-5. It is stated that in order to entertain the appeals the prescribed fee had to be paid and for that purpose challans have to be issued by the second respondent and, therefore, the petitioner made a request to the said authority for issue of challans to pay the appeal fees. It is further stated that a cheque was also tendered towards appeal fees along with exhibit P-6 application. THE second respondent issued exhibit P-7 communication stating that since the petitioner is not an assessee of that office his request for challan along with the cheques are not enter-tainable and the same was returned. In the covering letter forwarding the appeals to the third respondent the petitioner had stated that he is not in a position to submit the challan receipt since the Agricultural Income-tax Officer has refused to issue the challan for the payment of the fees in spite of specific request made therefor and he also enclosed a copy of exhibit P-7 communication issued by the second respondent. Pointing out the provisions of Section 72(3) of the Act, the petitioner enclosed a cheque for Rs. 100 towards appeal fee. It is also stated that the fourth respondent--Tahsildar, Revenue Recovery, Kanjirappally--issued exhibit P-9 notice of sale of immovable property dated July 19, 1997, as provided under Sub-section (2) of Section 49 of the Kerala Revenue Recovery Act for an extent of 40.47 acres of land in Sy. No. 277/1-Block No. 22, Erumely South Village, T. P. Account No. 2197 and all improvements in the land for realisation of a sum of Rs. 77,930 plus interest and costs as per File No. AIT. 40/90, AIT 33/95/B2. In this original petition, the petitioner has sought for quashing exhibits P-3 and P-9 revenue recovery notices and also for an order directing the second respondent to accept the appeal fee and issue challan receipts for the assessment years 1992-93 and 1995-94 and for a direction to the third respondent to post exhibits P-4 and P-5 appeals for hearing and dispose of the appeals or to grant a stay of recovery of the disputed tax till final disposal of the appeals.

(2.) AS per interim order dated August 20, 1997, passed by this court in C.M.P. No. 26028 of 1997, the sale of properties pursuant to exhibit P-9 notice was stayed on condition the petitioner pays a sum of Rs. 25,000 before August 26, 1997. Sri M. Pathros Mathai, learned counsel appearing for the petitioner, submitted that the interim order passed by this court has been complied with. Learned counsel submitted that though an appeal against an order passed by the Agricultural Income-tax Officer is provided under Section 72 of the Act only at the instance of an assessed aggrieved by the said order, under Rule 76 of the Kerala Agricultural Income-tax Rules, 1991, any person aggrieved by the order of the Agricultural Income-tax Officer may file an appeal before the Appellate ASsistant Commissioner. He further submitted that since the amount duo as per exhibit P-2 order is sought to be recovered by sale of the properties purchased by the petitioner as per exhibit P-l sale deed from the said Benjamin Dominic, the petitioner is a person aggrieved by the said assessment order and, therefore, he is entitled to file appeal against exhibit P-2 order as provided under Rule 76 of the Kerala Agricultural Income-tax Rules, 1991. Learned counsel also submitted that the provisions regarding appeals have to be construed very liberally as laid down by the Supreme Court and construing the provisions of Section 72 of the Act along with Rule 76 of the Rules it has to be held that any person aggrieved by an order passed by the Agricultural Income-tax Officer can file appeal against the said order as provided therein and, therefore, the second respondent was not justified in saying that he will not issue challan for payment of the appeal fee and further the third respondent appellate authority was not justified in refusing to entertain the appeal especially when the petitioner had enclosed a cheque for the fees prescribed under the Act along with the appeal memorandum. Learned counsel also relied on a decision of the Calcutta High Court in CIT v. N. Ch. R. Row and Co. [1983] 144 ITR 557 and submitted that the petitioner is entitled to the reliefs sought for in the original petition. I have also heard the learned Government Pleader appearing for the respondent. He submitted that under the provisions of Section 72 of the Act only an assessee aggrieved by an order passed by the Agricultural Income-tax Officer can file appeal and that the petitioner is not an assessee and, therefore, the second respondent was justified in rejecting the application for issue of challan and the third respondent also was justified in not entertaining the appeals filed by the petitioner. He accordingly submitted that there is no merit in this original petition,

(3.) THE word "assessee" is defined in Section 2 of the Act to mean a person by whom any tax or any other sum of money is payable under this Act and includes various other persons referred to in Clauses (i) to (iv) thereof. As per Clauses (iii) and (iv) of Section 2(7), even persons, who are proceeded against for recovery of amounts due under any of the provisions of the Act, will come under the definition of "assessee". That apart, under the provisions of Section 57 of the Act where a person in receipt of agricultural income from any land is found to have transferred his interest in such land to another person, the transferor and the transferee shall each be assessed in respect of his actual share of such agricultural income and when the transferor cannot be found, the assessment of such agricultural income of the previous year in which the transfer took place up to the date of the transfer and for the years preceding that year shall be made on the transferee in like manner and to the same amount, as it would have been made on the transferor. Similarly, when the tax in respect of the assessment made before or after the transfer for any or all of such years, assessed on the transferor cannot be recovered from him, it shall be payable by and recoverable from the transferee subject to the right of the transferee to recover from the transferor the amount of any tax so paid. So, by virtue of the provisions of Section 57 of the Act, a transferee can be made liable for payment of agricultural income-tax due from the transferor-defaulter in respect of the tax due in relation to the property transferred if the circumstances stated therein are satisfied. As already stated, assessee means a person by whom any tax or any other sum of money is payable under this Act. A person who is made liable to pay tax under Section 57 of the Act is, therefore, an assessee who satisfies the definition of "assessee". In the instant case, there is nothing to show that the transferor, Mr. Benjamin Dominic, had informed the fact of transfer of the property from which agricultural income is derived to the assessing authority as provided under Sub-section (3) of Section 57 of the Act. THErefore, the assessing authority proceeded against the property as if the property belonged to the said Benjamin Dominic. If as a matter of fact the assessing authority had come to know of the transfer of the property under attachment in favour of the petitioner, certainly the assessing authority would have proceeded against Mr. Benjamin Dominic and his other properties and only after it was found that the amount cannot be recovered from the said Benjamin Dominic the assessing authority would have resorted to the provisions of Section 57 of the Act. I have referred to the provisions of Section 57 of the Act and the definition of "assessee" only to see whether the petitioner can be treated as an assessee for the purpose of Section 72 of the Act ; for, under the provisions of Section 72 of the Act, an appeal against an assessment order can be filed only by an assessee aggrieved. If the definition of "assessee" contained in Section 2(7) of the Act is understood in the light of the provisions of Section 57 of the Act, it has to be said that the petitioner, whose property is sought to be proceeded against for recovery of the amount due from Mr. Benjamin Dominic as per exhibit P-2 order, is an assessee for the purpose of Section 72 of the Act. THE petitioner is certainly aggrieved by the action taken for recovery of the amount due as per exhibit P-2 by sale of the properties purchased by him as per exhibit P-l from Mr. Benjamin Dominic. That apart, as already stated, Rule 76 of the Rules provides that any person aggrieved by an order passed by the Agricultural Income-tax Officer can file appeal against the said order before the Appellate Assistant Commissioner. In Rule 76, the expression used is "person aggrieved" as against the expression used in Section 72 of the Act, "assessee aggrieved".