Govinda Bhat, J.
1. This writ petition preferred by an assessee under the Mysore Agricultural Income-tax Act, 1957 (hereinafter called the 'Act'), is directed against the order of the Commissioner of Agricultural Income-tax in Mysore (respondent No. 2), dated March 31, 1960, which affirmed the order of assessment dated April 11, 1959, made by the Agricultural Income-tax Officer, Dharwar (respondent No. 3), under section 19(4) of the Act. The assessment relates to the assessment year 1957-58, the relative previous year being the year ended March 31, 1957. The petitioner challenged the order of assessment on several grounds and one of the grounds was that the Act did not levy any charge on the income derived prior to November 1, 1956, from lands that were situated in the former State of Bombay but included in the new State of Mysore. This court allowed the writ petition on the said ground by its order dated October 30, 1961, following its decision in Writ Petition No. 224 of 1959.
2. The State of Mysore preferred appeals against the said decision in Writ Petition No. 224 of 1959 and the connected matters to the Supreme Court in Civil Appeals Nos. 1176 to 1178 and 1180 of 1965. After the decision of the court, the State legislature amended the Act by Act No. 25 of 1962. The Supreme Court set aside the decision of this court taking the view that the effect of the amendment of the definition of the words 'State and State of Mysore' by Act No. 25 of 1962 is, that the Act levied a charge on the income from lands derived during the entire previous year relevant to the assessment year 1957-58. The Supreme Court, however, remanded the matters for disposal afresh.
3. In Writ Petition No. 205 of 1967 we have upheld the constitutional validity of the Act as amended by Act No. 25 of 1962, and we have held that the State legislature is competent to levy tax on agricultural income though derived prior to November 1, 1956, before the information of the New State of Mysore.
4. The only ground urged by the learned counsel for the petitioner against the impugned order of assessment made under section 19 (4) is that it is illegal and not in accordance with the provisions of the Act and, therefore, it should be quashed. The material portion of section 19 (4) reads :
'If any person fails to make a return under sub-section (1) or sub-section (2) of section 18, as the case may be, or fails to comply with all the terms of a notice issued under sub-section (4) of that section or under sub-section (2) of this section, the Agricultural Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment...'
It is clear from the above that the Agricultural Income-tax Officer has the power to make the assessment to the best of his judgment only in cases where any person fails to make a return under sub-section (1) or sub-section (2), as the case may be. In cases where sub-section (1) or sub-section (2) of section 18 is not attracted, the power under sub-section (4) of section 19 cannot be exercised. The Act came into force on October 1, 1957. Sub-section (1) of section 18 of the Act provides :
'(1) Every person whose total agricultural income during the previous year exceeded the maximum amount which is not chargeable to agricultural income-tax shall furnish to the Agricultural Income-tax Officer so as to reach him before the 1st June every year a return in the prescribed form and verified in the prescribed manner, setting forth his total agricultural income during the previous year'.
Since the Act came into force only on October, 1, 1957, sub-section (1) of section 18 is not attracted to the assessments for the financial year 1957-58.
5. Sub-section (2) of section 18 of the Act as it stood in 1957-58 provided that in the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial year, he may serve in that year a notice in the prescribed form requiring such person to furnish a return in the prescribed form and verified in the prescribed manner setting forth his total agricultural income during the previous year. The power under sub-section (2) of the section 18 may be exercised by the Agricultural Income-tax Officer only before the end of the financial year. In respect of assessment for the financial year 1957-58 that power was not available after March 31, 1958. It is seen from the assessment order that a notice purporting to be one under sub-section (2) of section 18 was served on the petitioner on February 19, 1959, and since the petitioner did not file any return, the 3rd respondent proceeded to make the order of assessment under sub-section (4) of section 19 treating the petitioner as a defaulter. Since the 3rd Respondent has no jurisdiction to issue a notice after March 31, 1958, calling upon the petitioner to file a return for the assessment year 1957-58 and the notice issued was illegal and without jurisdiction, the petitioner was justified in not submitting a return. The petitioner not being a defaulter, the power under sub-section (4) of section 19 was also not available to the 3rd respondent to make an order of assessment to the best of his judgment. Therefore, in our opinion, the 3rd respondent has acted in excess of his jurisdiction in making the assessment on the petitioner for the assessment year 1957-58.
6. For the above reasons, the impugned order of assessment made by the 3rd respondent and the orders of the 2nd respondent which affirmed the order of 3rd respondent are hereby quashed. If the tax assessed has been recovered, the same shall be refunded to the petitioner.
7. No costs.