1. The assessment proceedings in BG/A-44/4 of 1960-61, which is marked as annexure 'C' to this petition, is assailed on various grounds. As we are of the opinion that, on the facts and in the circumstances established in this case, the assessing authority was not competent to assess the petitioner under section 19(4) of the Mysore Agricultural Income-tax Act (on the basis of best of judgment), it is unnecessary to consider the other contentions advanced on behalf of the petitioner.
2. The impugned assessment order relates to the assessment year 1960-61. The assessment authority served a notice on the petitioner under section 18 on May 1, 1961, calling upon him to submit his returns within 35 days from the date of the service of the notice. No return was filed by the petitioner within the time stipulated in the notice. But a return was submitted on August 14, 1961. The impugned assessment order was made on August 26, 1961, ignoring the return in question and proceeding to assess the petitioner on the basis of best of judgment. Section 18 (2) of the Mysore Agricultural Income-tax Act, 1957 (to be referred to hereinafter as the 'Act'), which corresponds to section 22(2) of the Indian Income-tax Act, says :
'In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such an 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 within such period, not being less than thirty days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice) his total agricultural income during the previous year.'
3. Sub-section (3) of section 18, which corresponds to section 22(3) of the Indian Income-tax Act, provides :
'If any person has not furnished a return within the time allowed by or under sub-section (1) or sub-section (2) or, having furnished a return under any of those sub-sections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made.'
4. Under section 19 (1) of the 'Act' if the Agricultural Income-tax Officer is satisfied that a return made under section 18 is correct and complete, he shall, by order in writing, assess the total agricultural income of the assessee and determine the sum payable by him or the basis of such return. Sub-section (4) of that section says :
'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 assessments to the best of judgment and determined the sum payable by the assessee on the basis of such assessment, and in the case of a firm, may refuse to register it or may cancel its registration if it is already registered.'
5. From the above provisions, it is clear that if a return is submitted before an assessment is actually made, the assessing authority has to consider the return in question. He cannot ignore that return and proceed on the basis of best of judgment. In the instant case, the return as noticed above, had been submitted on August 18, 1961, and the assessment was made on August 26, 1961, ignoring the return in question. That being so, the assessment in question is clearly opposed to law. Therefore, the same is quashed.
6. It is to open to the assessing authority to make a fresh assessment in accordance with law. The respondent shall pay the costs of the petitioner. Advocate's fee Rs. 100.