Skip to content


N.K. Ganapaiah Vs. Agricultural Income-tax Officer, Hassan - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Judge
Reported in[1973]91ITR479(KAR); [1973]91ITR479(Karn); (1973)1MysLJ10
ActsMysore Agricultural Income Tax Act, 1957 - Sections 37
AppellantN.K. Ganapaiah
RespondentAgricultural Income-tax Officer, Hassan
Appellant AdvocateM. Rama Bhat, Adv.
Respondent AdvocateM.P. Chandrakantraj Urs, Adv.
Excerpt:
.....money in the absence of forfeiture clause in agreement. however earnest money was allowed to be refunded @ 6% interest. - failure on your part to appear on the above said date, orders will be passed as per law without further notice......he has to meet. without notice of the case of the department, how can assessee meet the case the notice dated january 18, 1971, reads thus : 'notice under section 37 of the mysore agricultural income-tax act, 1957, or rectification of certain mistakes apparent in the assessment orders for the assessment year 1966-77 and 1967-68. it has come to the notice of the undersigned that depreciation was allowed in excess while allowing initial depreciation for the assessment years 1966-67 and certain errors were found while calculating normal depreciation for the assessment years 1966-67 and 1967-68 to rectify the mistakes that are apparent in the assessment orders cited above under section 37 of the mysore agricultural income-tax act, 1957, i issue this notice and request you to appear.....
Judgment:

Govinda Bhat, J.

1. The petitioner is an assessee under the Mysore Agricultural Income-tax Act, 1957, hereinafter called 'that Act'. For the assessment year 1967-68, the respondent made an order of assessment on the petitioner on March 11, 1968. While determining the taxable income for the assessment year, certain depreciation allowances on the assets of the petitioner were allowed. The said order of assessment was rectified by respondent in exercise of the powers vested under section 37 of the Act by his order dated May 28, 1971. The said order has been challenged in this writ petition on several grounds. One of the grounds was that the petitioner was not afforded an opportunity of being heard before making an order of rectification. The second ground was that the view of the law taken by the respondent with regard to the allowance of initial depreciation is patentee erroneous.

2. The respondent has filed a counter-affidavit in which it is stated that a notice was issued to the petitioner to appear on February 10, 1971, in response to which the petitioner set a letter requesting for time by 15 days as he had to consult his accountants and that the petitioner did not appear thereafter before the respondent.

3. No fresh date of hearing was fixed by the respondent for the petitioner to appear after the expiry of 15 days. The respondent straight-away made the order of rectification on May 28, 1971. The respondent is not correct in stating in his affidavit that the order of rectification impugned was made without notice but it was the duty of the respondent to fix a fresh date for hearing and call upon the petitioner to appear on the said date. The petitioner could not have appeared on a future date unless a date was fixed for that purpose. Further, the notice that was issued in the instant case lacks the essential particulars of the alleged error. The assessee must be put on notice of the case he has to meet. Without notice of the case of the department, how can assessee meet the case The notice dated January 18, 1971, reads thus :

'NOTICE

Under section 37 of the Mysore Agricultural Income-tax Act, 1957, or rectification of certain mistakes apparent in the assessment orders for the assessment year 1966-77 and 1967-68.

It has come to the notice of the undersigned that depreciation was allowed in excess while allowing initial depreciation for the assessment years 1966-67 and certain errors were found while calculating normal depreciation for the assessment years 1966-67 and 1967-68 to rectify the mistakes that are apparent in the assessment orders cited above under section 37 of the Mysore Agricultural Income-tax Act, 1957, I issue this notice and request you to appear before me in my office at Hassan on February 10, 1971 to 11-30 a.m. and filed objections, if any, in the said matter with reasons. Failure on your part to appear on the above said date, orders will be passed as per law without further notice.

Sd/-

Agricultural Income-tax Officer,

Hassan.'

4. It is relevant to state that once an assessment order has become final, the burden is on the department to show that it suffers from the error apparent on the face of the record and, therefore, requires rectification. The notice proposing to make the rectification should furnish sufficient material to enable to the assessee could not have made any representations or filed his objections to the proposed rectification. A notice in the form that was issued to the petitioner is not sufficient to afford a reasonable opportunity to the assessee to make his representations. In that view, it is unnecessary to go into the other contentions urged by the assessee. Accordingly, we allowed this writ petition, quash the impugned order of rectification, dated May 28, 1971, reserving liberty to the respondent to issue a fresh notice in the manner indicated in this order and proceed to make the order under section 37 after giving reasonable opportunity to the petitioner of being heard.

5. It is ordered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //