Balakrishna Eradi C.J.
1. The Kerala Agricultural Income-tax Appellate Tribunal (hereinafter called 'the Tribunal') has referred to this court under Section 60 of the Agricultural Income-tax Act (for short 'the Act') the following questions of law as arising out of its order dated 11th April, 1979, in Agricultural Income-tax Appeal No. 46 of 1979 :
'a. Whether, on the facts and circumstances of the case, the Tribunal was correct in holding that an order under Section 2(p) of the Agrl. Income-tax Act, 1950, was not an appealable order ?
b. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in its view that a person can deny his liability to be assessed only when an order of assessment is passed against him, especially in view of the definition of the term ' assessee ' as contained in the Agrl. Income-tax Act, 1950? '
2. The reference has been made at the instance of the assessee. She is a director of a company called M/s. Chendakkal Plantations (P.) Ltd., Kuzhani, Alathur Taluk. On March 13, 1978, the Agrl. ITO, Alathur, issued a notice to the assessee proposing to treat her as the principal officer of the company. No objections were filed by the assessee against the said proposal. On March 20, 1978, the assessing authority passed an order stating that Smt. M. Janaki Amma (assessee), one of the directors of M/s. Chendakkal Plantations (P.) Ltd., Kuzhani, will be treated as the principal officer of the said company for the purpose of assessment under the Act for the assessment year 1972-73 and subsequent years, and that she should file the returns of agricultural income and expenses for the assessment years 1972-73 to 1976-77 in respect of the aforesaid companywithin 35 days of receipt of the said proceedings. The assessee filed an appeal before the AAC of Agrl. I.T. and S.T., Palghat, challenging the aforesaid order passed by the assessing authority. That appeal was dismissed by the AAC stating that he did not find anything incorrect or illegal in the order passed by the assessing authority. In disposing of the appeal the AAC treated the order appealed against before him as one passed under Section 25 of the Act.
3. Aggrieved by the dismissal of the appeal by the AAC, the assessee preferred a second appeal before the Tribunal. The Tribunal held that the AAC acted without jurisdiction in entertaining the appeal filed by the assessee since the order appealed against before the AAC did not fall within any of the categories of orders specified in Section 31 of the Act. In reaching the aforesaid conclusion, the Tribunal expressed the opinion that the order passed by the assessing authority against which the assessee had appealed before the AAC was not one passed under Section 25 of the Act and it was also not an order passed under Section 21 of the Act. In the view of the Tribunal, the order in question was one passed under Clause (p) of Section 2 of the Act and no appeal was provided by the statute against such an order. Dealing with the contention of the assessee that Section 31 confers on an assessee a right to file an appeal in a case where there is a denial by him of liability to be assessed, the Tribunal held that the denial of liability can constitute only a ground for challenging the order of assessment in an appeal which is provided for by Section 31 against the order of assessment. Accordingly, the Tribunal dismissed the second appeal filed by the assessee making it clear that the assessee would be at liberty to agitate the question of her liability to be treated as the principal; officer of the company afresh if she is ultimately assessed under the Act and if she chooses to file an appeal against the assessment.
4. It was strenuously contended before us by the counsel appearing on behalf of the assessee that the interpretation placed by the Tribunal on Section 31 of the Act is incorrect and that the said section if properly construed would be found to enable an assessee, denying his liability for assessment under the Act, to file an appeal against any action taken by the ITO which declares the person as liable for assessment. We shall now read Sub-section (1) of Section 31 of the Act (the other sub-sections are not relevant for our present purpose) :
'31. Appeal against assessment,--(1) Any assessee objecting to the amount of income assessed or tax determined or loss computed under Section 18 or denying his liability to be assessed under this Act or objecting to any order under any of the provisions of Sections 19, 20, 21, 25, 29 and 41 made by the Agricultural Income-tax Officer or to the cancellation by him of the registration of a firm or to the refusal to register a firm may appeal to the Assistant Commissioner against the assessment or against such order :
Provided that no appeal shall lie in respect of an assessment made under Sub-section (4) of Section 18. '
5. The words 'denying his liability to be assessed under this Act' have been used as words qualifying the expression ' assessee '. The right of appeal conferred by the section is ' against the assessment or against such order '. Hence an appeal can be filed by an assessee who denies his liability to be assessed under the Act either against the order of assessment made against him or against orders coming within the description of ' such order ' contained in the last portion of the section. The expression ' such order ' used in the last portion of Sub-section (1.) obviously denotes orders under Sections 19, 20, 21, 25, 29 and 41 which have been specifically referred to in the earlier part of the said sub-section. Thus, the position that emerges on a correct interpretation of the section as a whole is that appeals can be filed by assessees who object to the amount of income assessed or the quantum of tax determined or loss computed or who deny their liability to be assessed under the Act either against the order of assessment made against them or against any order passed by the assessing authority under Section 19, 20, 21, 25, 29 or 41. In cases where the appeal is not against an order of assessment, the assessee has to show that the order challenged by him is one passed under any one of the provisions enumerated in the first part of Section 31, namely, Sections 19, 20, 21, 25, 29 and 41.
6. The assessee has no case before us that the order passed by the assessing authority against which she had filed the appeal before the AAC was one under Section 19, 20, 21, 25, 29 or 41. That leaves us with the question that whether the said order can be regarded as one passed under Section 25 of the Act. Sub-sections (1) and (2) of Section 25 can have no relevancy to the present context except to the extent that Sub-section (1) prescribes the manner in which the agricultural income received by a company or firm or association of persons and the business through which such income is received has been discontinued in any year is to be brought to assessment. Sub-section (3), which alone requires to be considered by us, is in the fallowing terms :
'(3) Where an assessment is to be made under Sub-section (1), the Agricultural Income-tax Officer may serve on the person whose agricultural income is to be assessed or, in the case of a firm, on any person who was a member of such firm at the time of its discontinuance or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under Sub-section (2) of Section 17 and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section.'
7. This sub-section merely empowers the ITO to issue a notice to the principal officer of a company. It does not contemplate any adjudication being conducted into the liability of a person to be assessed or the passing of an order declaring any person to be liable to be assessed under the Act. This is merely a procedural provision laying down the procedure to be followed by the officer in making the assessment against a company, firm or association of persons where the business through which such income is received has been discontinued. The view taken by the AAC that the order passed by the assessing authority was one passed under Section 25 of the Act was, therefore, clearly erroneous.
8. The Tribunal was of the opinion that the order in question passed by the assessing authority should be regarded as one made under Section 2(p)(ii), Section 2 is the definition section and Clause (p) is in the following terms :
'(p) 'Principal officer' used with reference to any company or association means-
(i) the secretary, treasurer, manager or agent of the company or association, or
(ii) any person connected with the company or association upon whom the Agricultural Income-tax Officer has served a notice of his intention of treating him as principal officer thereof.'
9. This clause does not envisage any order being passed by the ITO under its provision. Sub-clause (ii) merely states that any person connected with the company upon whom the Agrl. ITO has served a notice of his intention of treating him as the principal officer is to be treated as the principal officer of the company for the purpose of the Act. We do not, therefore, find it possible to agree with the view expressed by the Tribunal that the order passed by the assessing authority was one made under Section 2(p)(ii) of the Act. But that is really of no consequence because unless the assessee is able to show that the order, not being an assessment order, is one made under one of the provisions enumerated in Section 31, namely, Section 19, 20, 21, 25, 29 or 41 of the Act, the provision for appeal contained in Section 31 will not be attracted and no appeal can be maintained before the AAC.
10. In the light of the foregoing discussion, we answer the questions referred in the affirmative, that, is, against the assessee and in favour of the department. The parties will bear their respective costs.
11. A copy of this judgment under the seal of the court and the signature of the Registrar will be forwarded to the Tribunal as required by law.