The petitioner made applications to the Commissioner of Agricultural Income-tax and sought to have the order of assessment for the years 1953-54, 1954-55, 1955-56 and 1956-57 suitably revised. For the year 1957-58 the petitioner-company-assessee had taken the matter to the High Court and had obtained a decision in its favour on the question of the allowance of expenses incurred in the upkeep of immature rubber trees in the plantation. After this matter had been decided the petitioner approached the Commissioner for similar relief in respect of the assessment years mentioned above, as the normal remedy by way of appeals was no longer available. The Commissioner in his order stated that the Travancore-Cochin Agricultural Income-tax Act not having prescribed any period of limitation within which an application under section 34 of that Act should be made, the general law, meaning thereby the Indian Limitation Act, should apply. He thought that article 181 of the Indian Limitation Act would cover these petitions and since the period of three years prescribed against that article had expired, the petitions filed were out of time. He also made a passing reference to the decision in Commissioner of Income-tax v. Tribune Trust, as supporting the refusal to reopen the assessment which had not been kept alive.
In these petitions challenging this order; Mr. Subramaniam, learned counsel for the petitioner, urges that when the Agricultural Income-tax Act has not fixed any period of limitation for the filing of an application under section 34 of that Act, it is not open to the authority, namely, the Commissioner, to fix, as it were, his own period of limitation. The general principle that, where the law does not prescribe a period of limitation, it is not open to the appropriate authority to do so is well settled and beyond dispute. But what the Commissioner has done in the instant case is that he applied article 181 of the Indian Limitation Act. Learned counsel for the petitioner points out that the Indian Limitation Act applies only to suits, appeals and applications filed in the ordinary courts of law and that the Commissioner functioning under the Kerala Agricultural Income-tax Act is not a court so that the Indian Limitation Act would have no application whatsoever.
Learned Additional Government Pleader has fairly conceded that this contention finds support in a decision of the Supreme Court in Sha Mulchand & Co. v. Jawahar Mills Ltd. It is not necessary for our present purpose to consider whether the Indian Limitation Act as a whole can apply only to the procedure in the civil court. With particular reference to article 181, their Lordships have held that it relates to an application made under the Code of Civil Procedure and to on other application. It would follow therefore that the reliance upon article 181 of the Limitation Act as supporting the Commissioners view that the application is out of time is erroneous in law. Nor do I find any substance in the reference to Commissioner of Income-tax v. Tribune Trust. The real ratio of that decision is that, where an assessee has allowed certain assessments to become final without challenging them in the mode prescribed by the relevant enactment, he cannot claim that these assessments are a nullity solely on the ground that a later decision had decided the point in a different way. In that case the Judicial Committee was dealing with the provisions of the Income-tax Act and they pointed out that section 33 which gave general powers of revision to the Commissioner was one which was not intended to create a right in the assessee or as conferring a general relief. Indeed when an assessee approaches the Commissioner for relief in the exercise of the powers of revision, he does so more often than not only in cases where the assessments have otherwise become final. It is not necessary for a person seeking relief in that manner to keep the assessment alive. In any event, the decision of the Privy Council did not deal with that aspect of the matter.
It, therefore, follows that in so far as the Commissioner took the view that the applications were out of time under article 181 of the Limitation Act, he was in error.
It is no doubt true that the fact that no period of limitation is prescribed under section 34 of the Kerala Agricultural Income-tax Act may lead to certain practical difficulties, for very old assessment may be attempted to be brought within the purview of the Commissioners power of revision. But such cases can certainly be dealt with by the Commissioner, for to a certain extent at least the Commissioners power of interference can be exercised in his discretion. Notwithstanding such practical difficulties, in all proper cases, the Act does provide a method by which the assessee can secure some relief.
The petitions are allowed. The Commissioner will take the applications back on his file and dispose of them on the merits. There will be no order as to costs in any of these petitions.