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Keethadath Abdulkhader Vs. Agricultural Income-tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberO.P. No. 3284 of 1979-G
Judge
Reported in(1982)28CTR(Ker)317; [1983]140ITR91(Ker)
ActsIncome Tax Act, 1950 - Sections 31(4) and 38; Kerala Agricultural Income Tax Rules, 1951 - Rule 25A
AppellantKeethadath Abdulkhader
RespondentAgricultural Income-tax Officer and ors.
Appellant Advocate P.A. Mohammed, Adv.
Respondent AdvocateGovernment Pleader
Excerpt:
- - 3. coming to the major point raised in the writ petition, namely, the relevancy of the reports submitted by the commissioner, i have no hesitation in holding that the 3rd respondent was clearly in error in stating as follows ;as each year's assessment is independent, the inspection conducted subsequently would not form a proper basis for earlier periods where there is already an inspection, which forms the correct basis of the assessments in dispute......during any particular year would not be exactly the same for another year; they would vary from year to year, without being constant in the very nature of things ; however, this fact would not be a justification for not considering the worth of the report on the ground that it represents the yield and the expense as observed at an inspection made subsequent to the end of the accounting year. the proper thing to do in the context of the provisions contained in sections 31(4) and 38(c) of the act and rule 25a of the rules is to consider the report giving due weight to valid objection, if any, raised by the assessee, and make use of the data furnished by the commissioner to the extent it is found relevant and acceptable in determining the probable yield and expense during the accounting.....
Judgment:

Bhaskaran, J.

1. The matter arises out of orders passed by the 3rd respondent, the Dy. Commr. of Agrl. I.T. and S.T., Kozhikode, in the purported exercise of his jurisdiction under Section 34 of the Agrl. I.T. Act, 1950. The challenge in this writ petition is directed against Exs, P-10 and P-13.Ex. P. 10 is the order passed by the 1st respondent, the Agrl. ITO, Taliparamba, whereunder the petitioner was assessed to agricultural income-tax to the tune of Rs. 10,807.65 and a surcharge of Rs. 2,759-51. Exhibit P-13 is the order of the 3rd respondent, the Dy. Commr. (Appeals) Agrl. I.T. and S.T., Kozhikode, dated August 17, 1979.

2. The grievance of the petitioner against Ex. P-13 order is that it is without considering the relevancy of the reports submitted by the commissioner who visited the property on 27/28 of October, 1977, that the Uy. Commissioner disposed of the revision. A further submission made by the counsel for the petitioner is that though as per the accounts the salary paid to the karyastha came to ,Rs. 4,200 for the year, instead of allowing that deduction in full only a sum of Rs. 1,200 was allowed by the 1st respondent, the Agrl. ITO, in Ex. P-10 order, and that alone has been allowed by the Deputy Commissioner also in Ex. P-13 order.

3. Coming to the major point raised in the writ petition, namely, the relevancy of the reports submitted by the commissioner, I have no hesitation in holding that the 3rd respondent was clearly in error in stating as follows ;

'As each year's assessment is independent, the inspection conducted subsequently would not form a proper basis for earlier periods where there is already an inspection, which forms the correct basis of the assessments in dispute.'

4. Sub-section (4) of Section 31 of the Act provides :

'The Assistant Commissioner shall fix a day and place for the hearing of the appeal and may from time to time adjourn the hearing and make or cause to be made such further inquiry as he thinks fit:

Provided that on the application of the appellant and at his cost the Assistant Commissioner may, in appropriate cases, issue a commission to ascertain and report the yield and cultivation expenses or the rent and collection charges of the properties of the assessee included in the assessment order, and orders on the appeal shall be passed only after considering the said report.'

5. The power to take evidence conferred on the Appellate Tribunal, the Commissioner, the Asst. Commissioner and the Agrl. ITO includes the power to issue a commission for the examination of witnesses and for ascertaining the yield and cultivation expenses in respect of any land. (vide Section 38(c) of the Act). Rule 25A of the Agrl. I.T. Rules, 1951, provides the elaborate procedure in regard to the appointment of a commissioner and the manner in which the commissioners are to inspect the properties and make the report. Sub-rule (8) of Rule 25A provides :

'(8) When the report is submitted together with the evidence, the appropriate authority or the Appellate Tribunal shall serve on the partiesconcerned, a copy of the report and the evidence, and shall specify the time for filing objections, if any, by them and the matter shall be posted to a fixed day for hearing.'

6. Sub-rule (9) is to the following effect:

'The appropriate authority or the Appellate Tribunal may, or on the application of any of the parties to the proceedings shall, examine the Commissioner personally, touching any of the matters referred to him, or mentioned in his report, or as to the manner in which he has made the investigation.'

7. Sub-rule (10) provides:

'When the appropriate authority or the Appellate Tribunal is, for any reason, dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to be made as it may think fit.'

8. Sub-rule (11) provides:

'The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the case and shall form part of the records.'

9. As it could be seen from Section 38(c) of the Act the power to issue commission has been conferred on the commissioner, the Asst. Commissioner and the Agrl. ITO to make an assessment regarding the yield and the expenses with respect to the income relevant for the year. If, as a matter of fact, no useful purpose is to be served by the issue of a commission and the obtaining of a report prepared by the commissioner, the Legislature would not have made a provision as is contained in Section 31(4) and Section 38(c) of the Act. The elaborate procedure for the appointment of the commissioner, inspection of the property, and the preparation of the report, also would not have been provided but for the fact that the Legislature thought such report is a relevant piece of evidence in the process of determining the income and the expenses for the production of the yield for the year. There could be no doubt that the yield and cultivation expenses during any particular year would not be exactly the same for another year; they would vary from year to year, without being constant in the very nature of things ; however, this fact would not be a justification for not considering the worth of the report on the ground that it represents the yield and the expense as observed at an inspection made subsequent to the end of the accounting year. The proper thing to do in the context of the provisions contained in Sections 31(4) and 38(c) of the Act and Rule 25A of the Rules is to consider the report giving due weight to valid objection, if any, raised by the assessee, and make use of the data furnished by the commissioner to the extent it is found relevant and acceptable in determining the probable yield and expense during the accounting year in question. In this case the 3rd respondent has, whileaccepting the data relating to the number of trees, rejected the data with respect to yield, expenditure, etc., on the reasoning that the report of inspection was not relevant 'as each year's assessment is independent'. The reason adduced in support of the conclusion reached by the 3rd respondent cannot be upheld in the light of/the provisions contained in Sections 31(4) and 38(c) of the Act and Rule 25A of the Rules.

10. I would, therefore, quash Ex. P-13 order passed by the 3rd respondent, the Dy. Commissioner, and direct him to pass a fresh order disposing of the revision considering the entire material on record including the reports submitted by the commissioner. The writ petition is disposed of as above. There will be no order as to costs.

11. Issue carbon copy of this judgment to the Government Pleader free of charge and to the counsel for the petitioner on usual terms, if applied for in that behalf .


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