PROVINCE OF BIHAR Vs. MAHARAJA MAHADEVASHRAM PRATAP SAHI

JUDGEMENT

(1.) THIS reference by the Board of Agricultural Income-tax, Bihar - hereinafter called the Board - under Section 25(1) of the Bihar Agricultural Income-tax Act, 1938 - hereinafter referred to as the Act - is made in peculiar circumstances to ask the opinion of the Court whether the order of the Commissioner of Agricultural Income-tax dated the 27th October, 1942, was illegal.

(2.) THE assessee, Maharaja Bahadur of Hathwa, was assessed on the 31st August, 1939, by the Agricultural Income-tax Officer for the assessment year 1938-39 on a certain sum which included Rs. 24,475 as representing interest on arrears of rent in the year 1345 fasli being the previous year for that assessment. For the following year 1939-40 the assessee was assessed by the Agricultural Income-tax Officer on the 19th March, 1940, for a certain sum including Rs. 18,441 as representing interest on arrears of rent in the year 1346 fasli. No appeal was preferred against these two orders. An application under Section 27 of the Act was filed by the assessee on the 22nd September, 1941, before the Agricultural Income-tax Officer inviting his attention to the fact that the same amounts of interest on arrears of rent in the years 1345 and 1346 fasli have been assessed both by the Agricultural Income-tax Department and by the Indian Income-tax Department. Attention was also drawn to the fact that in the years in question it was not definitely certain whether the questioned amount was taxable under the Agricultural Income-tax Act or under the Indian Income-tax Act. THE assessee accordingly prayed that on principles of equity and justice and even under the provision of Section 27 of the Act, the mistake, which was apparent on the face of it, should be rectified. It was urged that the delay in making the application should be condoned, as the matter was not free from doubt and has been cleared only recently by a decision of the Calcutta High Court. By an order dated the 7th of November, 1941, the Agricultural Income-tax Officer declined to give any relief to the assessee as in his view the Madras High Court ruling, Zemindar of Kirlampudi, was applicable to the case and further, As assessments for 1938-39 and 1939-40 were made prior to 3rd July, 1940, Calcutta High Court ruling also did not apply. This matter is still sub-judice and the point has been referred to Patna High Court for decision in the case of Maharajadhiraj of Darbhanga. Hence the petition filed cannot come under Section 27.

(3.) THE Board on the 17th of June, 1943, took the view that although the Commissioners order was illegal, the Board had no power to review it. It further held that Section 27 of the Act had no application and, therefore, the Agricultural Income-tax Officer was right in rejecting the prayer of the assessee. It also pointed out : No revision lay as Section 24 only provides for revision of an order passed on appeal under Section 22 and, as already stated, there was no appeal. THE Commissioner made a further mistake by adding the words the appeal is allowed. THEre was no appeal before him. Even if it had been an appeal it was long time-barred under Section 22(2) read with rule 13, but the Commissioner purported to act under Section 24 and under sub-section (3) of that section any order passed in revision is final subject to a reference to the High Court under Section 25.