YADVENDRA DATT DUBE Vs. STATE OF U.P.

JUDGEMENT

(1.) This is case referred under Sec. 24(4) of the Uttar Pradesh Agricultural Income Tax Act by the Revision Board at the assessees instance, the question requiring this courts answer being : Whether on the facts and having regard to the provisions of Sec. 25 of the Act, the Board could on the 15th Oct., 1952, direct a fresh assessment to be made - The facts as they appear from the statement are as follows h: The gross agricultural income of the assessee is of more than one lakh of rupees and the Collector and not the Sub-divisional Officer is his assessing authority : vide Sec. 14. Sec. 15(3) lays down that "in the case of any person whose total agricultural income is, in the opinion of the assessing authority, such amount as to render such person liable to payment of agricultural Income Tax in any years, he may be served in that year a notice in the proscribed form requiring such person to furnish within such period, not being less than thirty days as may be specified in the notice, a return in the proscribed form setting forth his total agricultural income during the previous years." If the assessing authority is satisfied that return made under Sec. 15 is correct and complete it is to assess the agricultural income of the assessee and determine the tax payable by the person. If it finds the return to be incorrect or incomplete it should serve on the person a notice requiring him to attend its office or to produce evidence on a certain date and the it should pass an assessment order assessing the agriculture income and determining the tax payable by the person. If the person fails to make a return or fails to comply with the notice issued under sub-section (2) or to produce evidence under sub-section (3) of Sec. 16 it is required to make the assessment to the best of its judgment. This is the gist of Sec. 16. There is some difficulty in giving effect to the provisions of Sec. 16(3) and 14(2). Who is an assessing authority depends upon the gross income but what is the gross income can be determined only when it is assessed under Sec. 16 after the issue of a notice under Sec. 15(3). The notice under Sec. 15(3) is required to be issued by the assessing authority; it is not understood how, before it is known what the gross agricultural income of the assessee is going to be, it can be said whether a Sub-Divisional Officer is the assessing authority or the Collector and how without its being determined at this stage who is going to be the assessing authority a notice can be issued at all. However, in this case a notice under Sec. 15(3) was issued by a Sub-Divisional officer of the assessment year 1356 Fasli. He found that the gross income of the assessee was of more than one lakh and still assessed him on May 14, 1949, though on the net amount of Rs. 72,000 and odd. On Dec. 23, 1949, the Collector issued a notice contemplated by section 25 to the assessee stating that some income of his had remained un assessed. This provision reads as follows :

(2.) In the connected case three questions have been referred to this court by the Revision Board, they being :

(3.) There is only one question referred to this court in the instant reference and it is whether the Board could direct a fresh assessment to be made more than one year after the expiry of the assessment year. There could arise other questions such as whether the assessing authority referred to in Sec. 25 is the assessing authority that had passes the original assessment order resulting in escape or may be a different assessing authority and whether which assessing authority is competent to issue a notice under Sec. 25 depends on the amount of the escaped income or on the aggregate of the amounts of the income already assessed, if at all, and the escaped income. The original assessment order was passed by a Sub-Divisional Officer but the notice under Sec. 25 was issued not by him but by the Collector. The Collector issued notice under Sec. 25 on the ground that a net income of Rs. 7,000 and odd had escaped assessment; if the amount of the escaped income alone was to be considered in determining who can issue a notice under Sec. 25, the Sub-Divisional Officer, and not the Collector, could issue it. Further, if once an assessment order was passed by an assessing authority only, it can issue a notice under Sec. 25; again the notice in this case could have been issued only by the Sub-Divisional Officer. But if the law is that if an assessment order is passed by a Sub-Divisional Officer wrongly, i.e., without jurisdiction, a notice under Sec. 25 can be issued by the Collector notwithstanding the fact that the amount of the escaped income is of less than one lakh of rupees, the notice was rightly issued by the Collector. None of these questions has, however, been raised on behalf of the assessee.