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N. K. Leela Thampatty Vs. Commissioner of Agricultural Income-tax, Madras. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 4719 of 1965
Reported in[1972]83ITR903(Mad)
AppellantN. K. Leela Thampatty
RespondentCommissioner of Agricultural Income-tax, Madras.
Cases ReferredSeshadrinathan v. State of Madras. It
Excerpt:
- .....income-tax, ootacamund. the appellate assistant commissioner relied upon a decision of the appellate tribunal in a. t. a. no. 82 of 1961 dated august 17, 1962, declaring that the income from the sale of trees of spontaneous growth was agricultural income. i may immediately state that this court in ouchterlony valley estates (1938) ltd. v. commissioner of agricultural income-tax, madras, where a division bench of this court held that the sale proceeds of trees of spontaneous growth would not amount to agricultural income and, in this view of the matter, differed from the appellate tribunal, which included such sale proceeds in agricultural income and observed that, as the department had not proved that the trees sold were not trees of spontaneous growth, the sale proceeds could.....
Judgment:

RAMAPRASADA RAO J. - The assessee is the karnavathi of an undivided Marumakkattayam toward, consisting of three shares, according to the partition in the Nilambur Kovilagam. She owns lands in Gudalur Taluka, but it is common ground that she has leased them out to estates. She does not do any cultivation. The Agricultural Income-tax Officer, Gudalur, by his order dated February 15, 1962, assessed the petitioner for a total agricultural income of Rs. 14,882.43 and to a tax of Rs. 1,796.49 for the assessment year 1961-62. The case of the petitioner is that the income is not taxable agricultural income as it related to the proceeds of sale of timber trees of spontaneous growth. The Agricultural Income-tax Officer did not accept the contention of the petitioner and even so the Assistant Commissioner of Agricultural Income-tax, Ootacamund. The Appellate Assistant Commissioner relied upon a decision of the Appellate Tribunal in A. T. A. No. 82 of 1961 dated August 17, 1962, declaring that the income from the sale of trees of spontaneous growth was agricultural income. I may immediately state that this court in Ouchterlony Valley Estates (1938) Ltd. v. Commissioner of Agricultural Income-tax, Madras, where a Division Bench of this court held that the sale proceeds of trees of spontaneous growth would not amount to agricultural income and, in this view of the matter, differed from the Appellate Tribunal, which included such sale proceeds in agricultural income and observed that, as the department had not proved that the trees sold were not trees of spontaneous growth, the sale proceeds could not be assessed to agricultural income-tax.

To continue, the petitioner did not file an appeal against this order of the appellate authority within the time prescribed, but filed a revision petition to the Commissioner of Agricultural Income-tax under section 34 of the Madras Agricultural Income-tax Act, 1955. The Commissioner by his order dated August 4, 1965, which is impugned in these proceedings was of the view that, as the petitioner did not take up the matter to the Appellate Tribunal within the time prescribed and as the Assistant Commissioner, he was not prepared to exercise his powers under section 34 of the Act and in this view of the matter he dismissed the revision petition. Incidentally, he relied upon a decision of this court in T. C. No. 70 of 1963, since reported in Kantan v. Agricultural Income-tax Officer, Ootacamund, which was later affirmed by a Full Bench of this out in Seshadrinathan v. State of Madras. It is against the dismissal of this revision petition the present writ petition has been filed.

I am constrained to point out that the decision relied upon by the Commissioner of Agricultural Income-tax has no application at all to the present case. That was a case where the Division Bench as well as the Full Bench of this Court were considering the meaning of the expression 'order prejudicial to the assessee' which appears in the second proviso to sub-section (1) of section 34 of the Act. That has absolutely no bearing on the power of the Commissioner to entertain an application for revision and pass orders thereon and the conditions under which he could exercise such powers of revision. This is dealt with in sub-section (2) of section 34 and hence the reliance placed by the learned Commissioner on the decision refereed to by him has absolutely no relevance.

Under section 34, the Commissioner may, of his own motion or on application by an assessee, entertain an application in revision which questions any order passed by any authority subordinate to him and after making such enquiry as he deems fit, pass such orders thereon as are necessary. Under sub-section (2) of section 34 the Commissioner shall not revise any order under sub-section (1) if -

(a) where an appeal against an order lies to the Appellate Tribunal, the time within which such appeal may be made has not expired; or

(b) where an appeal against the order has been made to the Appellate Tribunal, the appeal is pending before it; or

(c) the order has been made more than three years previously.

The time limit prescribed for the entertainment of such revision petitions was amended in 1958 whereby the period of one year provided in clause (c) of sub-section (2) of section 34 imposes a ban on the entertainment of such revision petitions, it, on the date when such revision petitions are filed, the time to prefer an appeal against the impugned order to the Appellate Tribunal has not expired. This negative import of clause (a) of sub-section (2) of section 34 projects the position that the Commissioner can revise an order under sub-section (1) of section 34, if no such appeal has been filed to the Appellate Tribunal by the aggrieved person against the order of any subordinate authority. This appears to be so clear from a fair reading of the text of the clause. Clause (b) injuncts the Commissioner from entertaining a revision petition if such an appeal has been filed to the Appellate Tribunal and the same is pending.

With the above background as to the statutory provisions regarding the entertain ability and disposal of revision petitions before the Commissioner, it is urged by the learned counsel for the petitioner that the Commissioner has refused to exercise jurisdiction properly vested in him in law in having so summarily rejected her revision petition without disposing it of in a manner known to law. The learned Government Pleader would, however, say that, as the Commissioner is vested with a discretion to entertain such revision petitions, it is not open to the petitioner to compulsorily call upon him to entertain this application, even though the petitioner had not filed an appeal against the order of the Appellate Assistant Commissioner to the Appellate Tribunal in time.

The discretion vested in the Commissioner is a judicial discretion and has to be exercised judiciously. Sometimes, the word 'may' has been interpreted as 'shall', having regard to the force of statutory compulsion behind the exercise of such discretion. In cases where the aggrieved person has no other alternative remedy under the statute, the legislature has thought it fit to vest the Commissioner with such powers of revision either suo motu or at the instance of the aggrieved assessee. As this procedure in revision essentially involves the adjudication of rights and liabilities of parties, it is undoubtedly a quasi-judicial matters, it is but essential that the statutory authorities vested with the power to adjudicate on such subject-matter and ultimately vest or divest rights of citizens should not lightly use their discretion and refuse to interfere on grounds which are neither reasonable nor proper. It is only to plug a situation faced by an aggrieved assessee who is unable to approach the appellate authorities for relief that a proceeding by way of revision is thought of by the legislature and in such circumstances a public duty is imposed on the Commissioner not only to entertain such application, but to deal with the same in accordance with law, after giving the aggrieved party a reasonable opportunity of being heard. I am unable to agree with the learned Government Pleader that the word 'may' in the instant case should be interpreted literally and ought not to be understood as casting a public duty on the Commissioner to entertain the revision petition and pass the necessary orders thereon. In the peculiar circumstances of this case, I am inclined to hold that, following the well established rule of prudence that in some cases the word 'may' should be read as 'shall', the instant case is one and that the respondent has failed in his duty in not having entertained the revision petition and in not having disposed it of regularly and legally. In this view of the matter, the rule nisi is made absolute and the subject-matter of the revision petition is remitted once again to the file of the Commissioner of Agricultural Income-tax, Madras-5, to enable him to deal with the same in accordance with law and in the light of the observations made above.

There will be no order as to costs.


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