9911796707
TMI Blog1996 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... rivandrum, under section 34 of the Agricultural Income-tax Act, 1950, for the year 1981-82 is challenged, whereas in T. R. C. No. 239 of 1992 a similar order passed by the Commissioner for the year 1978-79 is under attack. The petitioner-companies carried on the business of growing and planting rubber, cashew, etc. As per annexure " A " in T. R. C. No. 210 of 1992, the Inspecting Assistant Commissioner completed the assessment for the year 1981-82. That order was passed on January 14, 1987. There was an appeal from the said order and the Deputy Commissioner as per annexure " C " order allowed the appeal filed by the assessee in part and accordingly the assessment order for the year 1981-82 was directed to be modified. Being dissatisfied w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers are vitiated for the reason that there is no explanation from the Commissioner for the delay. As against annexure " E " notice for the year 1981-82 the assessee-company, inter alia, raised the following objection as to limitation in annexure " F " " The initiation of proceedings under section 34 are barred by the laws of limitation in that it has not been invoked within a reasonable time. In any event, under the Agricultural Income-tax Act, 1991, the proceedings are clearly time-barred. " Likewise, for the year 1978-79, the assessee-company has raised the following objection as to limitation in annexure " C " : " At the outset your proceedings are barred by the laws of limitation in that it is initiated more than seven years aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said : " It is not the time that is fixed by the authority who is to exercise the power. Nor is it the one that is fixed by the person who would be affected by the exercise of such power. It is the time that a reasonable man who is instructed on the facts of the case, feels just and proper. The reasonableness of time in a particular case paramountly depends on the facts and circumstances of each case ". It is therefore necessary for this court to examine whether the time taken by the Commissioner in initiating action under section 34 is reason able or not. This is not a case where the assessee has not raised any objection as to the delay. As far as the year 1981-82 is concerned, though the original assessment order was passed on January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued prior to the passing of the order under section 34. Specific objections as to limitation were raised to the notices proposing suo motu action. When such objections are raised, it is the paramount duty of the Commissioner to explain with facts and figures the reasons for the delay in taking action under section 34. As far as the year 1981-82 is concerned, the Commissioner says that there is no " unreasonable delay ". It cannot be said to be correct because the original assessment order was admittedly finalised on January 14, 1987, and it was the said order which was sought to be revised. The question is what was the reason for the delay. The appellate order was passed by the Tribunal on September 6, 1990, and thus all the matters w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under section 34. The said circumstance cannot be said to be a reason for delaying the matter by the Commissioner. In this connection, the learned Government Pleader has brought to our notice that the assessing authority can initiate action for assessment of escaped turnover under section 35 within a period of five years. Of course, it is true but it does mean that the Commissioner is allowed to take action within a period of five years for initiating action under section 34. In this context, it must be recalled that the powers under sections 35 and 34 are independent and separate. When the assessing authority is authorised to assess the escaped turnover within a prescribed period of five years under section 35, that is the function of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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