1. The petitioner is an assessee under the Mysore Agricultural Income-tax Act. His agricultural income in respect of the period between October 29, 1961, and October 28, 1962, was assessed to agricultural income-tax by the Agricultural Income-tax Officer who made his assessment order on March 16, 1963. By reason of the fact that he wrongly described the assessment year as 1962-63 although the assessment year was really 1963-64, the Income-tax Officer omitted to include in the assessment made by him the super-tax which was payable under section 53A of the Act, which became payable only in respect of the assessment year 1963-64 and the following assessment years.
2. It was for that reason that the Commissioner of Agricultural Income-tax commenced a proceeding under section 35 of the Act in which he proposed to revise the order of the Agricultural Income-tax Officer by adding to the determined tax, the super-tax charge by section 53A of the Act. He issued a notice to the petitioner on February 23, 1967, but postponed his order in that revision petition until April 24, 1967, on which date he made the inclusion.
3. It is this order which is challenged in this revision petition on the ground that, since the Commissioner, if he wished to make an order under section 35 of the Act, could make it only before the expiry of a period of four years from the date on which the order he proposed to revise was made, but the impugned order was made by the Commissioner after the expiry of that period, that order was beyond his competence.
4. It is seen that contention is without an answer. Under section 35 of the Act which authorises the exercise of the revision jurisdiction by the Commissioner in a case where in his opinion the order proposed to be revised was prejudicial to the interests of the revenue, he could, after giving the assessee an opportunity of being heard and after making such enquiry as he considers necessary, enhance or modify the assessment or direct the fresh assessment. He could make any one of those orders enumerated in that section including an order of enhancement. But, sub-section (2), which places a restriction on the exercise of that power, reads :
'(2) No order shall be made under sub-section (1).......
(b) after the expiry of four years from the date of the order sought to be revised.'
5. The Explanation to that sub-section provides that in the computation of the period of limitation prescribed by that sub-section, the period during which there was an order of stay or injunction by a court shall be excluded, but, in the present case, there was no such stay or injunction.
6. Now, since the Agricultural Income-tax Officer made his assessment order on March 16, 1963, the Commissioner could not have made an order under section 35 of the Act after March 16, 1967, since, on that day, the period of limitation prescribed under section 35(2) (b) expired. But he made his order on April 24, 1967, after the expiry of that period of limitation.
7. So, we quash the order made by the Commissioner. The assessee will be entitled to his costs. Advocate's fee, Rs. 100.