COMMISSIONER OF AGRICULTURAL INCOME TAX Vs. KAPPUMALAI ESTATE

JUDGEMENT

(1.) THE reference is at the instance of the Revenue, the assessments years are 1979-80 and 1980-81. THE question referred for the opinion of this court is as follows :

(2.) SECTION 35(2) provides that no order of assessment under SECTION 18 or of assessment or reassessment under Sub-section (1) of SECTION 35 shall be made after the expiry of five years from the end of the year from which the agricultural income was first assessable. For the year 1979-80, it is seen that the assessment order is dated March 13, 1985, it was despatched on April 22, 1985, and received by the assessee on April 26, 1985. The assessment order for the year 1980-81 was dated March 24, 1986, was despatched on December 2, 1986, and was received by the assessee on December 5, 1986. By applying the principles laid down by this court in Government Wood Works v. State of Kerala [1988] 69 STC 62 and in an earlier decision of a Bench of this court in Malayil Mills v. State of Kerala (T. R. C. Nos. 15 and 16 of 1981), it has to be taken that for both the years the assessment order had not been made within the period prescribed under SECTION 35(2). This court had taken the view that to make the order complete and effective it should be issued so as to be beyond the control of the authority concerned, for any possible change or modification. This should be done within the prescribed period, though the actual service of the order may be beyond that period. For both the years the assessment orders were despatched after the period of five years prescribed under SECTION 35(2).