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S.B. Muthumunia Mudaliar Vs. Commissioner of Agricultural Income-tax and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 678 of 1966
Judge
Reported in[1972]85ITR12(Mad)
ActsMadras Agricultural Income Tax Act, 1955 - Sections 35
AppellantS.B. Muthumunia Mudaliar
RespondentCommissioner of Agricultural Income-tax and anr.
Appellant AdvocateK.C. Rajappa, Adv.
Respondent AdvocateK. Venkataswami, First Addl. Govt. Pleader
Excerpt:
- - the commissioner failed to exercise jurisdiction vested in him by law. there is therefore an apparent error as well as an irregular exercise of jurisdiction which is patent in the challenged order. as i am satisfied that the petitioner was not properly apprised of the starting of the proceedings under section 35 of the act, the rule nisi has to be made absolute......the main contention raised before the commissioner was that there was no acknowledgment of any notice issued under section 35 and, therefore, the reassessment order is illegal and unsustainable. the commissioner of agricultural income-tax, however, relied upon the signature of the petitioner in a blank form of a notice captioned to be one generally issued in proceedings under section 35 of the act. the records have been brought on the rule nisi and i perused the same, and in particular scrutinised the so-called notice issued by the department to the petitioner under section 35 of the act. the notice is a printed form which is generally used when proceedings under section 35 are initiated. the form has not been filled up. no one has signed the same. the sine qua non for action under.....
Judgment:

Ramaprasada Rao, J.

1. For the assessment year 1958-59, the petitioner was assessed for/agricultural income-tax under Section 17(4), Madras Agricultural Income-tax Act, 1955. The original order is dated April 13, 1961. It appears that proceedings were taken under Section 35 of the Act and the case of the petitioner is that no notice under Section 35 was issued to him by the appropriate authority and such a notice, even if it emanated from the statutory authority, was not served on him or acknowledged by him. The petitioner's further case is that in spite of the laches as above, an enquiry was held under Section 35 of the Act and ultimately the order was revised. The petitioner filed a revision petition before the Commissioner of Agricultural Income-tax and contended that he was not served with the statutory notice under Section 35 either in the normal way or in the prescribed form and also contended on merits that the attempt to revise the order was not justified. We are not here concerned with the merits as they were not dealt with by the Commissioner fully. The main contention raised before the Commissioner was that there was no acknowledgment of any notice issued under Section 35 and, therefore, the reassessment order is illegal and unsustainable. The Commissioner of Agricultural Income-tax, however, relied upon the signature of the petitioner in a blank form of a notice captioned to be one generally issued in proceedings under Section 35 of the Act. The records have been brought on the rule nisi and I perused the same, and in particular scrutinised the so-called notice issued by the department to the petitioner under Section 35 of the Act. The notice is a printed form which is generally used when proceedings under Section 35 are initiated. The form has not been filled up. No one has signed the same. The sine qua non for action under Section 35 is that the Agricultural Income-tax Officer should believe that there has been an escapement of assessment and such belief could rest upon any reason. I am not here dealing with the scope of the expression 'any reason', as in the instant case no reason has been given. The Section certainly does not contemplate the issue of a notice under Section 35 for 'no reason' whatever. The notice scrutinised by the Commissioner is blank. No part of it is filled up with any material or matter so as to make it appear that there was any reason at all for the Agricultural Income-tax Officer to act under Section 35. The fact that an enquiry was held on such an inchoate and irregular notice under Section 35 does not make any difference at all. But, this enquiry was made much of by the Commissioner when he observed that the revision-petitioner did appear before the officer on July 8, 1963, and participated in the proceedings taken under Section 35. The error apparent lies in the fact that the Commissioner thought and presumed that the Agricultural Income-tax Officer was enquiring into a proceeding initiated by him under Section 35. I have already stated there was no proper initiation of the proceedings as no notice under Section 35 was given by him and as the blank notice on which reliance was placed does not take anyone into the realities of the situation. Such being the state of affairs, it would be unreasonable to conclude that the petitioner participated in proceedings under Section 35 of the Act on an issue of notice under Section 35 of the Act. In the instant case everything seems to be irregular from the inception. The Commissioner failed to exercise jurisdiction vested in him by law. There is therefore an apparent error as well as an irregular exercise of jurisdiction which is patent in the challenged order. I am unable to agree with the conclusion of the Commissioner that there was proper and sufficient service of notice within the meaning of the provisions of the Act.

2. As already stated it is not necessary for me to consider the merits as they were not fully appreciated by the Commissioner himself when he heard the revision petition and ultimately dismissed it. As I am satisfied that the petitioner was not properly apprised of the starting of the proceedings under Section 35 of the Act, the rule nisi has to be made absolute. The writ petition is allowed and there will be no order as to costs.


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