This is a writ petition under article 226 of the Constitution.
The prayer contained in the petition is that a writ of prohibition may be issued restraining the assessing authority, namely, the Additional Collector, Meerut, from proceeding to assess the petitioner for agriculture income-tax for the assessment year 1954-55 in accordance with section 6(2)(b), and for a writ of mandamus requiring the said assessing authority to assess the petitioner for agricultural income-tax for the aforesaid with the provisions of section 6(2)(a) of the U.P. Agricultural Income-tax Act. The petitioner has also prayed for a writ of certiorari for quashing the order of the assessing authority dated November 17, 1959, and the order of the Agricultural Income-tax Revision Board dated January 27, 1960.
The material facts lie in a narrow ambit. On November 27, 1959, the petitioner filed a return of its agricultural income for the previous year 1953-54 (1361F) and with its return expressed its option in A.I.T.Form 2 that its income be computed in accordance with the provisions of section 6(2)(b). Subsequently on April 4, 1955, it filed a revised return but stuck to the option which it had originally made. On November 8, 1958, the petitioner filed a fresh return and this time in A.I.T.Form 2, it expressed its option for computation of its income not in accordance with the provisions of section 6(2)(b) as it had originally done but in accordance of section 6(2)(a). An assessment order was made on March 27, 1959, under section 16(4) of the Act. There was an appeal against that order and the appellate authority directed the assessing authority to decide the question whether it was open to an assessee to change its option during the course of the assessment year. This matter was gone into and by an order dated November 17, 1959, the assessing authority held that the option accompanying the first return filed on behalf of the assessee could not be changed merely because under section 15(4) of the Act, another return or a revised return was filed before the assessment was completed. The petitioner, being aggrieved by this order, went up in revision before the Agricultural Income-tax Revision Board and the Board upheld the order of the assessing authority on this point by order dated January 27, 1960. Thereafter, this writ petition was filed in this court. The view taken by the Board is that an assessee under the Act having made an option once in A.I.T.Form 2 filed along with the original return could not change that option subsequently when filing another return or a revised return. The Board also held that an option once exercised would hold good for the whole of the year and could not be changed.
The material provision relevant to the point at issue is the provision of the Act contained in section 6(1) which is as follows :
'The agricultural income mentioned in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1) of section 2 shall, at the option of the assessee, be computed in accordance with clause (a) or clause (b) of sub-section (2).'
The method of computation under section 6(2)(a) is the estimate of agricultural income by multiplying the rental for any particular year by particular multiple. The other method is under section 6(2)(b). Here the basis is the actual income arrived at after making certain deductions mentioned in that sub-section.
Obviously, in giving this option to an assessee, the intention of the legislature was that the assessee may choose such method as he may consider most advantageous to himself. Then there is rule 5 of the Rules made under the Act. The rule is as follows :
'An Assessee shall, along with his return of income, file a declaration in Form A.I.T. -2 indicating his option under sub-section (1) of section 6.'
It follows that the option which is given under section 6(1) is to be expressed in the Form A.I.T. -2 and has to be filed along with his 'return'. It will be noticed that in this rule, the word used is 'return' simpliciter and not the 'first' return or the 'original' return or a 'revised' return. It follows that the word used is equally applicable to a first return or an original return or a revised return. Another fact which is noticeable is that the language in this rule is mandatory and every return, first or subsequent, has to be accompanied by an option in Form A.I.T. -2.
Then there is section 15(4) of the Act, which runs as follows :
'(4) If any person having furnished a return under sub-section (1), (2) or (3) 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 and any return so made shall be deemed to be made in due time under this section.'
From this it would seem to follow that it is the right of the assessee to file any number of returns so long as the assessee discovers any omission or wrong statement in any earlier return filed by him. It is noticeable that the section uses the word 'return' in three places and the words 'revised return' in one place. From the context in which these words are used, it is quite clear that the section quoted above does not make any difference between the original return or a return filed subsequently. Thus a subsequent return can be properly called merely a 'return' and not a 'revised' return having regard to the language of the sub-section.
The result of the above discussion is that the mandatory requirement of the Act is that whenever a return is filed, whether originally or on a subsequent occasion, it must compulsorily be accompanied by an option in A.I.T. -2 Form. From this it appears to me that the conclusion is inevitable that it is open to an assessee to change his option with the filing of a subsequent return as many times as a return is filed until the filing of a subsequent return becomes impossible by reason of an assessment having already been made.
I have not been shown any provision in the Act or the Rules which forbids an assessee from changing the option which he made for the first time that he filed a return and declared his option.
For the reasons stated above, it seems to me that the view taken by the Board is not borne out by the provisions of the Act and the Rules, and the order of the Board must be set aside and quashed, which I do.
There being only the point of option before the Board, it appears to me that it will serve no useful purpose by requiring the Board to consider the revision afresh.
The order of the assessing authority dated November 17, 1959, which the Board affirmed must also be quashed. I order accordingly. The writ petition is allowed with costs. A writ of certiorari shall issue quashing the order of the assessing authority dated November 17, 1957, and the order of the U.P. Agricultural Income-tax Board dated January 27, 1960. A direction shall issue to the assessing authority that it shall proceed to assess the petitioner on November 8, 1958.