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K.C. Thomas Vs. Agricultural Income-tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberO.P. No. 1310 of 1971
Judge
Reported in[1973]91ITR438(Ker)
ActsKerala Agricultural Income Tax Act, 1950 - Sections 2 and 22; Income Tax Act, 1922 - Sections 2(1); Income Tax Act, 1961 - Sections 2(1); Taxation Laws (Amendment) Act, 1970; Kerala Agricultural Income Tax (Amendment) Act, 1971 - Sections 2 and 3; Constitution of India - Articles 274(1) and 366(1)
AppellantK.C. Thomas
RespondentAgricultural Income-tax Officer and ors.
Appellant Advocate Mani J. Meenattoor and; K.J. Chacko, Advs.
Respondent AdvocateGovernment Pleader
Cases ReferredAnanthanarayana Iyer v. State of Kerala
Excerpt:
(i) direct taxation - validation - kerala agricultural income tax act, 1950 - whether validation of assessment orders notwithstanding anything to contrary in any judgment, decree or order of court really effects inroad into judicial power of court - where legislature competent to enact particular statute and purports to so enact it and further validates its orders passed prior to such enactment by giving retrospective operation to provisions enacted then no question of any inroad into judicial process arises - when legislature supply base validating statute not open to attack as being one which attempts to usurp functions and powers of court or seeks to nullify what has been held as binding by earlier adjudication. (ii) retrospectivity - legislature empowered to enact legislature.....subramonian poti, j. 1. the petitioner claims to be in possession of 15 acres of governmental land in udumbanchola taluk. he was cultivating it with cardamom. the petitioner is in occupation of the land not under any arrangement with the government but in anticipation of the government granting him a lease. there is no case that any such lease has been granted.2. the land from which the petitioner thus derives income by agricultural operations is land which is not assessed to land revenue or subjected to any local rate assessed and collected by officers of the government as such. therefore, according to the petitioner, the income derived from these lands cannot be 'agricultural income ' as defined in the income-tax act, 1961 (43 of 1961) (prior to its amendment by the taxation laws.....
Judgment:

Subramonian Poti, J.

1. The petitioner claims to be in possession of 15 acres of Governmental land in Udumbanchola Taluk. He was cultivating it with cardamom. The petitioner is in occupation of the land not under any arrangement with the Government but in anticipation of the Government granting him a lease. There is no case that any such lease has been granted.

2. The land from which the petitioner thus derives income by agricultural operations is land which is not assessed to land revenue or subjected to any local rate assessed and collected by officers of the Government as such. Therefore, according to the petitioner, the income derived from these lands cannot be 'agricultural income ' as defined in the Income-tax Act, 1961 (43 of 1961) (prior to its amendment by the Taxation Laws (Amendment) Act, 1970 (42 of 1970)), or in the Kerala Agricultural Income-tax Act, 1950 (12 of 1950) (prior to its amendment by Kerala Ordinance, 1971 (No. 11 of 1971)).

3. The petitioner was assessed to tax on the income from the said-properties as if it was agricultural income for the years 1966-67, 1967-68 and1968-69. By order dated March 12, 1971, the petitioner was assessed for the assessment year 1967-68 by the Agricultural Income-tax Officer, Kumali, who is the first respondent herein. It is evident from the assessment order itself that the petitioner filed returns in regard to that year. But the return was not accepted, the income being estimated. The petitioner filed an application under Section 19 of the Act to cancel the assessment under Section 18(4). But the complaint is that notwithstanding that, proceedings for recovery of tax were being taken. On these allegations the petitioner complains that the attempt at recovery of tax for the assessment for 1967-68 is illegal for more reasons than one.

4. The Travancore-Cochin Agricultural Income-tax Act, 1950 (22 of 1950), came into force in the State of Travancore-Cochin from April 1, 1951. By Kerala Act 8 of 1957, it was extended to the Malabar District with effect from April 1, 1957, and the name of the Act was changed into 'The Agricultural Income-tax Act, 1950'. The term 'agricultural income' was defined in Section 2(a) of the Act 22 of 1950, as follows:

' 2. (a) 'Agricultural income' means-

(1) any rent or revenue derived from land which is used for agricultural purposes;

(2) any income derived from such land in the State by-

(i) agriculture, or

(ii) the performance by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market, or

(iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in Sub-clause (ii): . . .' This definition was amended by Kerala Act, 12 of 1964, with retrospective effect from April 1, 1951. The amended section read as follows : '

2. (a) 'Agricultural income' means-

(1) any rent or revenue derived from land which is used for agricultural purposes (and is either assessed to land revenue in the State or subject to a local rate assessed and collected by officers of the Government as such);

(2) any income derived from such land by-

(i) agriculture, or

(ii) the performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market, or

(iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him in respect of which no process has been performed other than a process of the nature described in Sub-clause (ii.)....'

5. The object of this amendment as evident from the objects and reasons is apparently as follows :

Amendments : 'Under Article 366(1) of the Constitution ' agricultural income ' means agricultural income as defined for the purposes of the enactment relating to Indian income-tax. According to the definition of this term in the Income-tax Act, 1961, rent or revenue from lands used for agricultural purposes will be treated as agricultural income only if the land from which the rent or revenue is derived is either assessed to land revenue or subject to a local rate assessed and collected by officers of the Government as such. It is considered necessary to make the definition of ' agricultural income' in the Act consistent with the provisions of Article 366(1) of the Constitution. For this purpose the definition is amended on the lines of the definition in the Income-tax Act, 1961, by Act 12 of 1964 with retrospective effect from April 1, 1951, the date of commencement of the original Act.'

6. The definition of agricultural income had necessarily to be based on the definition of the same term in the Income-tax Act in force for the time being. This was because Article 366(1) of the Constitution defined agricultural income as meaning ' ' agricultural income ' as defined for the purposes of the enactments relating to Indian income-tax ', unless the context otherwise required. Entry 46 in List II of the Seventh Schedule to the Constitution empowers the State legislature to enact laws relating to tax on agricultural income. The term ' agricultural income ' in this entry had necessarily to be understood in terms of the definition of that term in the law relating to income-tax by reason of the provision in Article 366(1) of the Constitution. That was the reason why Act 12 of 1964 was enacted to bring the definition of the term ' agricultural income' into line with that in the Income-tax Act, 1961. Subsequently, this definition in the Income-tax Act was changed by the Taxation Laws (Amendment) Act, 1970 (42 of 1970), and thereupon a corresponding amendment in the definition of the term was made in the Kerala Act, 22 of 1950. This was by Kerala Agricultural Income-tax (Amendment) Ordinance, 1971 (11 of 1971), subsequently replaced by Agricultural Income-tax (Amendment) Act, 1971. At the time the original petition was filed the Ordinance was in force and, therefore, the prayer in the original petition is to quash the provisions thereof. But, when the same amendment was incorporated by the Amendment Act that was sought to be challenged. I have allowed C.M.P. 1119 of 1972 seeking necessary amendment of the petition. The definition of agricultural income as amended is now seen in Section 2(a) of Act 22 of 1950. It runs as follows:

'2. (a) 'Agricultural income' means-

(1) any rent or revenue derived from land which is used for agricultural purposes;

(2) any income derived from such land by--

(i) agriculture, or

(ii) the performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market, or

(iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him in respect of which no process has been performed other than a process of the nature described in Sub-clause (ii).' Prior to the amendment by the Agricultural Income-tax (Amendment) Act, 1964 (12 of 1964), there having been no restriction in the definition of the term ' agricultural income ' limiting it to income from lands which were assessed to land revenue in the State or were subjected to a local rate, attempt was being made by the agricultural income-tax department of the State to assess income even in respect of those lands. This was being challenged from time to time and, ultimately, this challenge had to be noticed and the definition had to be brought into conformity with that in the Income-tax Act, 1961. But, notwithstanding such amendment by the Kerala Act, 12 of 1964, the agricultural income-tax department continued to assess agricultural income derived from such land and, therefore, the matter was again agitated in courts. This court in the decision in Chacko v. Agricultural Income-tax Officer, [1969] 77 I.T.R. 610 ; [1969] K.L.T. 406 (Ker.) held that there was no justification for such assessment and that in respect of income from such land there was no scope for assessment under Kerala Act 22 of 1950, in view of the definition in the Act. Soon followed the amendment in the Central Act. This amendment was followed up in the State enactment, as it should be, and Act 12 of 1971, which effected such amendment, made the definition retrospective from April 1, 1962. Thus, as the matter now stands, the definition of agricultural income is deemed to be that received as rent or revenue derived from land used for agricultural purposes.

7. By Section 1(2) of Act 12 of 1971, Section 2 is deemed to have come into force on April 1, 1962, and the remaining provisions from the 9th day of March, 1971. Section 3 validated all acts, proceedings or things done or taken or purporting to have been done or taken by any officer or authority in connection with assessment of agricultural income made or purporting to be made under Kerala Act 22 of 1950, in regard to land not assessed to land revenue in the State; or not subject to a local rate Assessed and collected. This validation operated to validate all those orders which had been passed prior to the amendment by Act 12 of 1971. Exhibit P-1 order, which was passed a few days prior to the enactment of Act 12 of 1971, was, thus, an order which was validated by reason of Section 3 of the Act.

8. Learned counsel, Sri K. J. Chacko, attacked exhibit P-1 order and in this he was supported by counsel for some of the petitioners who have filed similar petitions challenging the validity of Act 12 of 1971, and who were invited to argue since the same question arose in a number of cases.

9. The attack on the vires of the provisions of Kerala Act 12 of 1971 is three-fold. It is stated that it is not open to Parliament which enacted the Taxation Laws (Amendment) Act, 1970, or the State legislature which passed Kerala Act, 12 of 1971, to define ' agricultural income ' in such a way as to depart from the definition of that term in the Indian Income-tax Act, 1922, as it stood on January 26, 1950. It is contended that, at any rate, the retrospective operation given to Section 2 of the Act from 1st of April, 1962, is bad and beyond the powers of the State legislature. It is also urged that Section 3 which purports to validate the orders of assessment notwithstanding anything contained in any judgment, decree or order of any court, Tribunal or other authority to the contrary is incompetent as being in excess of the power conferred on the legislature and in so enacting the legislature was making an inroad into the judicial power of the court, Tribunal or other authorities. It is further urged that in any view of the matter, the retrospective operation given to Section 2 of the Act operates so harshly as to impose an unreasonable burden upon an assessee who comes within the ambit of that Act and renders the legislation confiscatory in character thus offending Article 19(1)(f) of the Constitution. I will have to consider these attacks here.

10. It is necessary to consider whether the amendment to the definition of ' agricultural income ' effected in the Agricultural Income-tax Act, 1950, by Act 12 of 1971 was competent, for, if it is not so, it is not necessary to consider any of the other contentions raised by way of challenge to the validity of the provisions of the Act. The definition of agricultural income, as contained in Act 22 of 1950, has already been adverted to and have also pointed out the reason for its amendment in 1964. It is not disputed that as the definition so stood after the amendment by Act 12 of 1971, the definition was in terms of the definition of the term in the Indian Income-tax Act, 1922, as on the date the Constitution came into operation. Article 366(1) of the Constitution of India reads thus:

' In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say- (1) 'agricultural income ' means agricultural income as defined for the purpose of the enactments relating to Indian income-tax;'.

11. The enactment now in force relating to Indian income-tax is the Income-tax Act, 1961, and after amendment of the definition of agricultural income in that Act by Taxation Laws (Amendment) Act, 1970 (42 of 1970), the definition is altered so as not to exclude income derived from lands which are not assessed to revenue by the State or subjected to any local rate from the scope of definition of agricultural income. As the Agricultural Income-tax Act stands now, as amended by Act 12 of 1971, the definition is in accordance with the definition in the Income-tax Act, 1961. But, counsel contends that there can be no amendment to the term ' agricultural income ' so as to depart from the definition of the term as contained in the Indian Income-tax Act, 1922. It is on the words of the definition in terms of Article 366(1) that reliance is placed for this purpose. According to counsel, when the definition refers to definition in the income-tax law in Article 366(1) it must be with reference to a date and that date must be understood as the date when the Constitution commenced to operate. In other words, according to counsel, the position is as if the definition in the Indian Income-tax Act, 1922, as it stood when the Constitution came into force, was written into the definition of ' agricultural income ' in Article 366(1). Therefore, it is said that if at any time an amendment of the term had to be adopted for the purpose of any income-tax law it could only be by amendment to the Constitution.

12. It true that the power of the State legislature to levy a tax on agricultural income derived from entry 46 in List II of the Seventh Schedule must necessarily be related to the definition of that term in Article 366(1) of the Constitution. But, I cannot subscribe to the contention that the reference in that definition to the definition of that term for the purpose of enactments relating to Indian income-tax must be read in the manner suggested by counsel. The definition indicates that it is open to the income-tax enactments in force from time to time to define agricultural income in any particular manner and that would then be the meaning of that term not only for the purpose of such enactments but also for the purpose of the Constitution. That evidently is for the purpose of avoiding conflict as to the legislative power of the States in regard to agricultural income. This is evidently the reasonable way of construction of this term. The income derived from lands must be considered either as agricultural income or as non-agricultural income or partly as agricultural income or partly as non-agricultural income, the former liable to be taxed by the State and the latter by the Union. Unless the field within which the respective legislatures could operate is defined there is likelihood of the same income being taxed by the laws of the State legislature as agricultural income and by the laws of the Union Parliament as non-agricultural income. To avoid such a contingency the proper course was to define agricultural income inrelation to the State law as one depending upon the definition of the term as contained in the laws made by the Union. That, evidently, is the purpose of defining agricultural income in the manner in which it is seen treated in Article 366(1) of the Constitution.

13. To read Article 366(1) of the Constitution as inelastic, in the manner suggested by the counsel, would create very many anomalies apart from the fact that the very words of the definition do not call for such a construction. There is no express prohibition in the Constitution as to the amendment from time to time of the definition of the term 'agricultural income' in the Union laws relating to income-tax. It is also unreasonable to suppose that the Constitution intended any such prohibition impliedly when the definition in Article 366(1) itself refers to the definition in the laws relating to income-tax and not to any definition in any Act as on January 26, 1950. If Article 366(1) is read as defining 'agricultural income ' as defined in the laws relating to income-tax in force on the date of commencement of the Constitution, then while the State's power to legislate will depend on that definition, the Union will be free to treat even such agricultural income as non-agricultural income for the purpose of income-tax laws which will lead to taxation of the same income as agricultural income by the State and non-agricultural income by the Union, a result which could not have been contemplated and as it appears to me a result which itself was sought to be avoided by the provision.

14. Another argument is advanced by counsel, Sri T. L. Viswanatha Iyer, based on Article 274(1) of the Constitution. That article, inter alia, provides that no Bill or amendment which imposes or varies any tax or duty in which States are interested, or which varies the meaning of the expression 'agricultural income', as defined for the purpose of the enactments relating to Indian income-tax, shall be introduced or moved in either House of Parliament except on the recommendation of the President. Counsel would say that this very provision indicates that no amendment relating to the definition of ' agricultural income-tax ' can be introduced in Parliament except on the recommendation of the President and, therefore, it is really a rider to Article 368 of the Constitution which lays down the procedure for amendment to the Constitution. I need only tate this argument to reject it. Article 274(1) does not deal with the procedure relating to any constitutional amendment but is only in regard to Bills relating to certain matters including, inter alia, the meaning of the expression agricultural income as defined in the enactments relating to Indian income-tax. In fact, that provision indicates that the expression ' agricultural income ' as defined in the Income-tax Act is liable to be varied from time to time.

15. That the validation of orders of assessments notwithstanding anything to the contrary in any judgment, decree or order of court really effects an inroad into the judicial power of the court is a contention which has been urged with considerable force by counsel for the petitioner. I think, by this time, that rule is well-settled. Validations in taxing statutes are by no means uncommon and it is evidently now a well-accepted legislative practice. When courts decide causes between parties it is binding on them and it is not open to the legislature to declare that, notwithstanding such decisions rendered by courts determining the rights of parties, they will not be operative. Any such legislation purporting to validate orders rendered ineffective by orders of courts would certainly be an inroad into the power of courts. But, where a legislature is competent to enact a particular statute and it purports to so enact it and further validates its orders passed prior to such enactment by giving retrospective operation to the provisions enacted, there is no question of any inroad into the judicial process or any usurpation of the power of the courts. The courts sometimes strike down acts of the executive or rules purported to be made under enactments on the ground of want of competency or absence of jurisdiction. But, when jurisdiction is conferred subsequently by the legislature which is competent to enact on the subject and retrospectivity is given to such law the basis of the defect in the decisions declared invalid by the courts is removed, and, consequently, validation would be possible. Earlier the courts might have invalidated the orders by reason of the absence of a base on which the orders could be sustained. But, when the legislature seeks to supply such base and it is competent to supply it because of its legislative power the, validating statute is not open to attack as being one which attempts to usurp the functions and powers of the court or seeks to nullify what has been held as binding by an earlier adjudication.

16. In an illuminating judgment, Chief Justice Hidayatullah in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, A.I.R. 1970 S.C. 192 stated this principle succinctly at paragraph 4 as follows :

' Before we examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a legislature sets out to validate a tax declared by a court to be illegally collected under ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind, for that is tantamount to reversing the decision inexercise of judicial power which the legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes, this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes, the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted, it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.'

17. There may be cases where the validating legislation may have omitted to supply the base or to remove the cause of the invalidity. Such statutes have not succeeded in standing the test of validity. As an instance I may refer to the facts of the case in State of Tamil Nadu v. M. Rayappa, A.I.R. 1971 S.C. 231. 232. The Madras High Court earlier held that the provisions of the Madras Entertainments Tax (Amendment) Act does not change the law retrospectively and, therefore, the order passed by the Commercial Tax Officer, Erode, making a reassessment purported to be under that Act was illegal. Thereupon, resort was made to enacting Section 7 of that Act making provision relating to validation of assessment and collection of certain taxes. Section 7 of the Act was found not to change the law retrospectively. All that it provided was that, notwithstanding anything contained in that Act or in the principal Act or in any judgment, decree or order of any court, no assessment or reassessment or collection of tax due on anypayment for admission to any entertainment or any cinematograph exhibition which has escaped assessment to tax, or which has been assessed to a rate lower than the rate at which it is assessable, under Section 4 or Section 4A of the principal Act, made at any time after the date of the commencement of the principal Act and before the date of publication of the Amending Act in the Gazette shall be deemed to be invalid or ever to have been invalid on the ground only that such assessment or reassessment or collection was not in accordance with law. This provision was intended apparently to overrule the decision of the Madras High Court, but did not change the law retrospectively. The Supreme Court held that the legislature had no power to enact such a provision and the learned judges said thus :

' .... Section 7 of the Act is invalid in so far as it attempts to validate invalid assessments without removing the basis of its invalidity.'

18. The same is the case which the Supreme Court considered in the decision in Municipal Corporation of the City of Ahmedabad v. New Shorrock Spg. & Wvg. Co, A.I.R. 1970 S.C. 1292.

19. It is apparent that in view of the retrospective operation of Section 2 of Act 12 of 1971 which alters the definition of agricultural income and by reason of the charging section in Act 22 of 1950 the retrospective effect renders the basis of assessment good and validation makes the order operative.

20. Yet another attack to the provisions of Act 12 of 1971 is that the retrospective operation given to Section 2 which results in what was not agricultural income till the date of the Act being treated as such even in respect of an earlier period is unreasonable.

21. Retrospectivity by itself is not open to objection as incompetent on the part of the legislature. If a legislature has a power to enact, it can do so prospectively or retrospectively. The question of retrospectivity may be relevant if there is a charge of unreasonableness in the statutes depriving the citizen of his fundamental right to hold property. The mere fact that a statute has been enacted so as to operate retrospectively may not by itself render it objectionable on the ground of unreasonableness nor does this even, prima facie, indicate unreasonableness. To give retrospectivity to a legislation, even in relation to taxation, is a well-settled legislative practice.

22. It may be that factors such as the Act being brought into force retrospectively for a number of years prior to the date of its enactment may render the burden on the citizen so heavy that he may not be able to meet the demand. It may be that, in the guise of taxation, retrospectivity may really be intended to confiscate property, the measure being a mere cloak or disguise. If it is shown that the measure is, by reason of itsultimate purpose or in its actual operation, confiscatory in character the courts may be justified in holding that such measure operates really as restriction on the fundamental right to hold and possess property guaranteed under Article 19(1)(f) of the Constitution. But this is not to say that merely because there is a heavy incidence of tax it operates as such a restriction. The very purpose of conferment of power to tax is to raise revenue for the State and it is the very character or incidence of tax that it will create a burden on the person against whom it operates. As Ramaswami J. said in Assistant Commissioner of Urban Land Tax, Madras v. Buckingham and Carnatic Co., [1970] 75 I.T.R. 603; [1970] 1 S.C.R. 268 (S.C.) it is not possible to put the test of reasonableness ' into the straight-jacket of a narrow formula '. The power to tax is an essential attribute of the Government. There is no limit to such power but for the limitations imposed by the Constitution. The objects to be taxed, the quantum of tax and the condition under which tax is to be imposed are all matters of policy to be decided upon by the Government and it is not for the court normally to sit in judgment over the propriety or otherwise of the measures adopted in this behalf by the State. Therefore, the enquiry, when a challenge is made to a statute on the ground of it being an infringement of the right to acquire, hold or possess property, is essentially limited or restricted to an enquiry into the question whether it is really an exercise by the legislature under the disguise of its power to expropriate a citizen or to confiscate his property.

23. Before me the attack to the provision in Section 1(2) and (3) of the Kerala Act, 12 of 1971, on the ground of unreasonableness of these provisions is based mainly on the long period of retrospectivity given to the provision in Section 2. It is urged that by reason of the operation of the enactment from April 1, 1962, the State is enabled to collect tax for a number of years, a tax for which the petitioner has not provided for, as, at the relevant time, there was no anticipation of a liability to agricultural income-tax. It is further said that in view of the fact that there was no possibility of the petitioner anticipating retrospective operation of any legislative provision which would impose a liability on him later, no accounts were maintained for the relevant period so much so that, when subsequently the petitioner was called upon to file returns and to face the assessment he would not be in a position to comply with it. These are pointed out as justifying this court finding the retrospectivity of the Act to be unreasonable.

24. I must notice here that apart from vague statements, no facts and figures are disclosed in the original petition as to how in fact the retrospectivity would work out to be confiscatory. Some counsel appearing in other similar petitions attempt to argue that the wages paid for thecultivation of the particular commodity with which their parties are concerned are so high that it would be uneconomical to pay tax retrospectively. Agricultural income-tax is levied not on the gross income but only on the net income. The net income is arrived at after deducting the wages and such other expenses and, therefore, what is left to the assessee is alone taxed and the tax is only a portion of what is so left. As to whether he would have conserved this so as to make it available at a future date when a retrospective levy is imposed, I cannot do better than to quote the words of Justice Gajendragadkar in the decision in Rai Ramkrishna v. State of Bihar, [1963] 50 I.T.R. 171, 181 ; [1964] 1 S.C.R. 894 (S.C.):

' Stated generally, it may not be unreasonable to assume that from the time when the Act of 1950 was brought into force it was known to all the owners that the legislature had imposed a tax in respect of passengers and goods carried by them and since then, and particularly after the amendment of 1954, they may have raised their fares and freights to absorb, their liability to pay the tax to the State.'

25. It is not as if the attempt by the State to tax agricultural income from lands which were not assessed to revenue was attempted for the first time after the Kerala Act 12 of 1971 came into force. There was attempt all along, though that was being repeatedly attacked, often successfully, before the courts by the assessees who were sought to be assessed. Chacko v. Agricultural Income-tax Officer illustrates this point. In fact there have been decisions of this court even earlier. Therefore, any prudent person could have anticipated a possible liability. The Supreme Court in Narottamdas v. State of Madhya, Pradesh, [1964] 26 F.J.R. 254 ; A.I.R. 1964 S.C. 1667. 1671 countering a similar argument of counsel, said thus :

' It is not also possible to accept the picture presented by Mr. Setalvad of the employers' financial difficulties in making payment for the past period as a fair representation of the true facts. For practically the entire period from the 1st April, 1959, to the date of the present Act the employers had before them the provisions of what purported to be a good law requiring them to pay at these very rates. As good businessmen they are expected to have made provisions for payments on those very rates, even though they intended to challenge the validity of the previous Act and ultimately succeeded in that attempt. We are not prepared to believe that such provisions are not generally made. The hardship which, according to Mr. Setalvad, the employers would have to face in making the payments for the past periods is, in our judgment, more imaginary than real.'

26. The legislative background could be looked into in these circumstances as was held by the Supreme Court in Jawaharmal v. State of Rajasthan, A.I.R. 1966 S.C. 764 and that I have already indicated in the present case. Neither is the fact that the retrospectivity operates for a long period by itself is objectionable as indicated by the Supreme Court in Narottamdas v. State of Madhya Pradesh.

27. In the case in Assistant Commissioner of Urban Land Tax, Madras v. Buckingham and Carnatic Co., the Supreme Court was concerned with the validity of the Madras Urban Land Tax Act, which was an Act relating to taxation of lands and buildings. It imposed tax on urban land at the then rate of market value. It was contended in that case that the Act must be struck down on the ground that it imposed unreasonable restriction on the right to acquire, hold and dispose of property, and was, therefore, violative of Article 19(1)(f) of the Constitution. The Supreme Court did not consider that the mere fact that the quantum of tax imposed was heavy was sufficient to render the taxation measure one infringing the fundamental right.

28. There is yet another attack to the Amendment Act. It is said that under the impression that there was no such valid provision requiring return to be filed in respect of agricultural income from lands not assessed to revenue, persons deriving income from such lands may not have filed returns and would not have challenged orders of assessment on the ground that such orders will not have any legal force. Therefore, the petitioner's case is that in such cases when orders are validated the assessees lose their right to challenge the orders which they would otherwise have. So far as the petitioner is concerned he has filed returns but including only income from lands other than the income which according to the petitioner he is not assessable to tax. A similar contention was raised before the Full Bench of the Kerala High Court in the case in Ananthanarayana Iyer v. State of Kerala, [1967] 19 S.T.C. 281; [1967] K.L.T. 141; A.I.R. 1967. Ker. 256, 258 [F.B.]. The challenge therein was to the validity of the Sales Tax (Levy and Validation) Act, 1965. Dealing with the contention, the learned judges said thus:

' It is suggested by the petitioners that Section 4 may be considered asvalidating the levies, assessments or collections mentioned in that sectioneven in cases where there has been a violation of the canons of naturaljustice. There is no warrant for the suggestion. If there has been a levy,assessment or collection which is invalid for any reason other than thelack of the legal foundation provided by Section 3 with effect from April 1,1958, then that assessment, levy or collection will certainly be open tochallenge in appropriate proceedings.'

29. The same reasoning applies here also. Of course, when once it is found that the Act is within the competence of the legislature, and, therefore, valid, if in individual cases of assessments there is sufficient reason to interfere, such interference will be possible before the appropriate forum including a challenge before this court. That, by itself would not be a ground sufficient to hold the statute as imposing an unreasonable restriction.

30. For these reasons I see no reason to uphold the challenge made to theAmendment Act before me.

31. Attack was made to the assessment order on grounds other than thevalidity of the Amendment Act. The objection to the order is that it hasbeen arbitrarily passed. It is said that a petition under Section 19 of theAgricultural Income-tax Act, 1959, was moved to reopen the assessment;and according to the petitioner that is pending. The petition will be goneinto on the merits, if it has already not been gone into, and, therefore, Ineed not go into the merits of the attack against the order. If the petitioner is aggrieved by the order passed on the petition under Section 19 ofthe Act, it is open to him to seek appropriate reliefs.

32. The original petition is hence dismissed as above. No costs in thecircumstances.


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