9911796707
TMI Blog1984 (6) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ond appeals before the Agricultural Income-tax Appellate Tribunal. By exhibit P-1 order dated July 22, 1975, the Appellate Tribunal ordered some modifications. There was dispute with regard to the details of double crop and single crop paddy lands actually in the possession and enjoyment of late Chandu Nair during the two years in question. The Appellate Tribunal directed the assessee to produce certificate from the village officer concerned showing the correct details relating thereto within a month of the receipt of the appellate order (vide para 3 of exhibit P-1). It was also specified that if the assessee failed to produce the certificate mentioned within the time specified, the assessment will stand confirmed. It is common ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposed of only by exhibit P-1 order dated July 22, 1975, and the recovery proceeding taken in this case more than 3 years after the order was rendered in the appeal exhibit P-1 is incompetent in view of the second limb of section 41(4) of the Act. Section 40(1) and the proviso thereto as also section 41(4) of the Act on which much reliance was placed may be quoted "40. Recovery of tax and penalties. -(1) Any amount specified as payable in a notice of demand under section 30 or an order under sections 31, 32 or 33 shall be paid in such number of instalments, within such time, at such place and to such person, as may be specified in the notice or order, or if a time is not so specified, then on or before the first day oil the second mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances in each case. The occasion for the exercise of the discretionary power of jurisdiction vested in the Officer will arise only when the assessee against whom demand has been made invokes the said jurisdiction. I am unable to accept the submission of petitioner's counsel that the proviso to section 40(1) of the Act is a legislative mandate to treat the assessee as not in default pending an, appeal tinder section 31 of the Act (first appeal) even without a motion in that behalf by the assessee. The proviso only contains an enabling power vested in the Officer. The jurisdiction should be invoked duly and properly by an assessee who has filed an appeal under section 31 of the Act. Until then, there is no question of the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The only further question that remains to be considered is with regard to the applicability of the first limb of section 41(4) of the Act. The language of the section is clear. It only interdicts the commencing of a proceeding for the recovery of any sum payable under the Act, after the expiration of three years from the latest day fixed for the payment in the notice of demand served under section 30 of the Act. Admittedly, in this case, the Agricultural Income-tax Officer commenced the proceedings for recovery within the period of three years. The order of assessment for the year 1969-70 is dated February 17, 1971, and the order of assessment for the year 1970-71 also is dated February 17, 1971. The notices of demand are also of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
