9911796707
TMI Blog1997 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... w expenses already allowed in assessments ?" The relevant facts are as follows : The present assessee is the legal heir of the late Sri Karimbil Kunhikoman who was assessed under the Agricultural Income-tax Act for the assessment years 1977-78, 1978-79, 1979-80, 1980-81, 1981-82 and 1982-83, as per orders dated November 26, 1980, November 20, 1985, November 20, 1985, January 24, 1986, January 24, 1986 and January 25, 1986, by the Agricultural Income-tax Officer, Hosdurg. Appeals were filed by the assessee before the Appellate Assistant Commissioner, Cannanore, in respect of the assessment years 1977-78, 1980-81, 1981-82 and 1982-83. The Appellate Assistant Commissioner remanded the matter to the assessing authority and fresh assessment for the year 1977-78 was completed on November 20, 1985. Assessment for the years 1980-81 to 1982-83 are pending finalisation. At this juncture, the Deputy Commissioner of Agricultural Income-tax issued notice dated November 1, 1988, invoking his power under section 34 of the Agricultural Income-tax Act, proposing to cancel the assessment for the year 1977-78 on the ground that the deduction granted to the assessee to an extent of Rs. 29,715.10 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted to be taken into account while completing the assessment for 1978-79 and 1979-80. In response to the notice, the assessee filed her objections con tending that the proposal to reopen the assessment was unfair and it would amount to harassment of the legal heirs of the late assessee even if he had committed a mistake in submitting the return. They also contended that if loss was caused to the Revenue by way of negligence of the officers it will not be a ground for reopening the settled dispute. The revisional authority repelled the contentions and by order dated August 24, 1989, cancelled the assessment orders for the years 1978-79 and 1979 80 and remitted the case back to the Agricultural Income-tax Officer, Hosdurg, for fresh disposal according to law. The revisional authority took the view that since the assessee had disclosed in her return for the year 1978-79 that 1,500 rubber trees were being tapped and she had conceded 11 1/4 quintals of rubber, the income on that basis should have been assessed. Another notice dated November 17, 1988, was issued by the Deputy Commissioner of Agricultural Income-tax and Sales Tax, Kannur, in exercise of his power under section 34 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to invoke the powers under section 34 of the Act. Learned counsel placed strong reliance on a Bench decision of this court in Anantha MalIan v. Commr. of Agrl. I. T. [1963] 47 ITR 93. In the above case, this court was considering the provisions contained under the Madras Agricultural Income-tax Act, 1950. It was held that if the Commissioner feels aggrieved by an order made by the Appellate Assistant Commissioner of Agricultural Income-tax, the proper procedure to be adopted by him is to direct the Income-tax Officer to file an appeal before the Appellate Tribunal. It would not be proper for him to exercise his revisional powers under section 34 of the Act as such a procedure would contravene the rule of natural justice and that no one should be a judge in his own cause. According to learned counsel for the assessee, the above decision would apply to this case. Another decision of this court relied on by learned counsel for the petitioner is in Oommen v. Commr. of Agrl. I.T. [1963] KLJ 211. In the above case even though an attempt was made for reconsidering the earlier decision of this court in Anantha Mallan v. Commr. of Agrl. I. T. [1963] 47 ITR 93, it was not successful. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34. Revision.---(1) The Commissioner may, of his own motion or on application by an assessee, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit : Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard : Provided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee. (2) Any order passed under sub-section (1) shall be final subject to any reference that may be made to the High Court under section 60." The Assessing Officer is given the power to issue notice and proceed to assess or reassess if he is satisfied that for any reason agricultural income chargeable to tax under the Act has escaped assessment or has been assessed at too low a rate. This power is granted under section 35 and period of limitation is prescribed under the Act for exercising the power of the assessing authority under section 35. Section 36 grants a pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here notice under section 34 of the Agricultural Income-tax Act was issued to the assessee requiring him to show cause why the order of the Appellate Assistant Commissioner should not be revised. Therefore, we find that these two decisions are of no assistance to the revision petitioner. We will now consider the decisions relied on by the learned Government Pleader. The case considered in CIT v. Amritlal Bhogilal and Co. [1958] 34 ITR 130 (SC), is strictly applicable to the facts of the present case. The matter arose under the Indian Income-tax Act, 1922. What was sought to be revised by the Commissioner in exercise of his power under section 33B was an order of the Income-tax Officer granting registration to the firm. The assessee had filed an appeal against the order of assessment before the Appellate Assistant Commissioner. But so long as the Appellate Assistant Commissioner had no jurisdiction to consider the question of registration there is no question of merger of the order granting registration in the appellate order. The order granting registration could never become the subject-matter of an appeal before the appellate authority. Therefore, the theory that the order of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessment. According to learned counsel for the assessee, for the years 1980-81 to 1982-83 the reason given for invoking section 34 is that the income from 1,500 rubber trees which had been tapped was not brought under tax, even though it was included in the return of 1978-79. Learned counsel would submit that it is a clear case of assessment of escaped income and if that be so, it is only the assessing authority which can take appropriate proceedings by invoking section 35 of the Agricultural Income-tax Act, 1950, and that too within the period of limitation prescribed therein. Reliance was placed by learned counsel on two decisions of this court in Suppan Chettiar v. Commr, of Agrl. I. T. [1958] KLJ 834 and Smt. Lucy Kochuvareed v. Commr, of Agrl. I. T. [1971] 82 ITR 845 [FB]. In the first case, this court took the view that in the case of escaped income proceedings can be taken only under section 35. In exercise of revisional powers under section 34 of the Travancore-Cochin Agricultural Income-tax Act the Commissioner cannot reopen the assessment and make reassessment including the "escaped income" but can only give a direction to the Agricultural Income-tax Officer to take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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