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N.V.S. Kadirvel Nadar Vs. the State of Madras. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberT.C.P. No. 17 of 1959
Reported in[1962]46ITR251(Mad)
AppellantN.V.S. Kadirvel Nadar
RespondentThe State of Madras.
Excerpt:
- .....been made more than one year previously. this provision has now been amended and instead of one year, a period of three years has been fixed. section 34(2)(c) enacts a period of limitation and it applies both to the commissioner initiating proceedings on his own motion and to the assessee applying for revision. it cannot be said that after the lapse of the period of one year, as it was in the year, 1956-57, or three years, as it now stands, the commissioners revisional powers become extinct. if proceedings are initiated by the commissioner or commenced at the instance of the assessee within the period prescribed under the act, the power of revision subsists till the proceedings are properly terminated. it would be anomalous to hold that the revisional power of the commissioner may not.....
Judgment:

JAGADISAN J. - The petitioner is a firm owning a cardamom estate in Papanasam reserve forest in Tirunelveli district. It was assessed to tax under Madras Act (V of 1955) by the Agricultural Income-tax Officer, Madurai, on March 30, 1957. Aggrieved by the decision of the officer, the petitioner filed an appeal before the Assistant Commissioner of Agricultural Income-tax, Madurai, who allowed the appeal in part and remanded the matter to the Agricultural Income-tax Officer for re-fixing the tax. The order of the appellate authority is dated July 15, 1957. The petitioner thereupon moved the Commissioner of Agricultural Income-tax (Board of Revenue) by way of revision under section 34 of the Act by preferring the revision petition on July 14, 1958. The application was dismissed by the Commissioner on July 21, 1958. The following extract of the order discloses the reason for the dismissal :

'The Commissioner is empowered to revise the orders of his subordinates under section 34 only within a period of one year from the date of the order of his subordinates but the petitioner has presented the petition just about the close of one year from the date of the order of the Assistant Commissioner. Further, the petition is defective. The petition has been affixed with a court-fee label to the value of Re. 1 instead of Rs. 2. The petitioner has not enclosed either the original order of the Assistant Commissioner or a certified copy of it. There is hardly any time to get the defects rectified, then call for the records, examine the case and pass orders within the time of one year allowed under section 34 of the Madras Plantations Agricultural Income-tax Act for interference by the Commissioner.'

The revision petition raises the question whether the view of the Commissioner is warranted by the provisions of section 34 of the Agricultural Income-tax Act.

Section 34 of the Act provides that the Commissioner may exercise the revisional power either on his own motion or an application by the assessee. Sub-section (2) of section 34, as it stood in the year of assessment, 1956-57, provides that the Commissioner shall not revise any order of the subordinate authority if the order had been made more than one year previously. This provision has now been amended and instead of one year, a period of three years has been fixed. Section 34(2)(c) enacts a period of limitation and it applies both to the Commissioner initiating proceedings on his own motion and to the assessee applying for revision. It cannot be said that after the lapse of the period of one year, as it was in the year, 1956-57, or three years, as it now stands, the Commissioners revisional powers become extinct. If proceedings are initiated by the Commissioner or commenced at the instance of the assessee within the period prescribed under the Act, the power of revision subsists till the proceedings are properly terminated. It would be anomalous to hold that the revisional power of the Commissioner may not deal with the matter for various reasons, either because he had other work to do or because the assessee wanted time to place further materials before the Commissioner or for other causes. The criterion is not the point of time when the application is disposed of, or the proceedings are terminated, but the point of time when the proceedings are initiated or the Commissioners jurisdiction is invoked.

The learned Government pleader referred us to the analogous provisions under the Income-tax Act, section 33A. That section comprises of two parts : sub-section (1) dealing with the Commissioners power to revise the proceedings of his own motion; and sub-section (2) providing for the exercise of such power at the instance of the assessee. The language of the proviso to sub-section (1) of section 33A of the Income-tax Act is just the same as the language in section 34 of the Agricultural Income-tax Act. The words are :

'Provided that the Commissioner shall not revise any order under this sub-section if... the order has been made more than one year previously.'

Sub-section (2) of section 33A is as follows :

'The Commissioner may, on application by an assessee for revision of an order under this Act passed by any authority subordinate to the Commissioner, made within one year from the date of the order (or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period), call for the record of the proceeding.......'

The difference in language between section 33A(1) and section 33A(2) of the Indian Income-tax Act clearly indicates that while the Commissioners powers exercised on such motion terminate if the power is not exercised within the period fixed, his powers of revision on an application by an assessee are not so limited, the period fixed being clearly in the nature of a period of limitation.

When the assessee applies within the period prescribed, the expiry of the period does not render the Commissioner functus officio.

But the provisions of the Agricultural Income-tax Act do not make a distinction between cases where the Commissioner exercise his powers suo motu and cases where he exercises such powers on the application of the assessee. We are of opinion that section 34 of the Agricultural Income-tax Act has fixed the period of one year, only as a period of limitation which applies both to the Commissioner as well as to the assessee. So long as the proceedings have commenced within the period fixed, the power of the Commissioner can be exercised at any time thereafter, and it is not necessary that the power should be exercised within the period fixed. The right of the assessee to obtain relief by applying for revision should not depend on the hazard of the revising authority disposing of the matter within a particular period and cannot be defeated by the failure of the authority to discharge the statutory functions.

In the result, this revision petition is allowed. The revision petition before the Commissioner is directed to be restored to his file; he will dispose it of afresh on the merits and in accordance with law. There will be no order as to costs.

Petition allowed.


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