STATE OF TAMIL NADU Vs. DEVAGIRI ESTATE

JUDGEMENT

(1.) THIS revision petition has been filed under section 54(1) of the Tamil Nadu Agricultural Income -tax Act, 1955, by the Special Commissioner and Commissioner of Agricultural Income -tax, Madras, against the order passed by the Tamil Nadu Agricultural Income -tax Appellate Tribunal, Madras, in A.T.A. No. 41 of 1996 dated 28 -8 -1997.

(2.) THE only point that arises in the revision petition is whether the Appellate Tribunal was correct in holding that the Appellate Assistant Commissioner has no power to enhance the assessment suo motu under section 31(5) of the Tamil Nadu Agricultural Income -tax Act (hereinafter referred to as the 'Act').

(3.) THE learned special Government Pleader appearing for the appellant submitted that the view of the Tribunal that the Appellate Assistant Commissioner has no suo motu power of enhancement under section 31(5) of the Act is not correct and he further submitted that under the provisions of section 31(5) of the Act, the Appellate Assistant Commissioner has such power. He also relied on the decision of a Full Bench of this court in State of Tamil Nadu v. Arulmurugan and Co. (1982) 51 STC 381 and submitted that the appellate authority has suo motu power of enhancement. Though notice was served on the assessee, there is no representation on behalf of the assessee. We carefully considered the submissions made by the learned Special Government Pleader and perused the records. The only point that arises for consideration is whether the Appellate Assistant Commissioner has power of enhancement of assessment suo motu under section 31(5) of the Act. Under section 31 of the Act, an assessee is given a statutory right to prefer an appeal before the Assistant Commissioner against the order of assessment made by the Agricultural Income -tax Officer. The powers of the Appellate Assistant Commissioner in disposing of the appeal are set out in sub -section (5) of section 31 of the Act and the said section reads as under '31. Appeal against assessment. -. . . (5) In disposing of an appeal, the Assistant Commissioner may - (a) in the case of an order of assessment - (i) confirm, reduce, enhance or annul the assessment (ii) set aside the assessment and direct the Agricultural Income -tax Officer to make a fresh assessment after such further inquiry as may be directed ; or (b) in the case of any other order, confirm, cancel or vary such order : Provided that no enhancement of an assessment or penalty shall be made under this section unless the appellant has had a reasonable opportunity of being heard against such enhancement : Provided further that at the hearing of any appeal against an order of an Agricultural Income Tax Officer, the Agricultural Income -tax Officer shall have the right to be heard either in person or by a representative.'