IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 1166 of 1998(L)
1. M/S.VALLEY ESTATES
... Petitioner
Vs
1. ADDL.AGRL.INCOMETAX OFFICER
... Respondent
For Petitioner :SRI.M.PATHROSE MATHAI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
Dated :22/11/2007
O R D E R
P.R. RAMAN, J.
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O.P. NO. 1166 OF 1998
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DATED THIS, THE 22ND DAY OF NOVEMBER, 2007.
J U D G M E N T
Petitioner is a registered Partnership firm engaged in the business of
plantation, having its Office at Kottayam, who is an assessee on the files of
the Additional Agricultural Income Tax and Sales Tax Officer, Sulthan
Bathery – the first respondent herein. The assessment pertains to 1987-88
to 1989-90. The assessment in respect of these years were completed as
evidenced by Exts.P1 to P3 orders of assessment produced in this original
petition. Aggrieved thereby, petitioner preferred an appeal before the
Appellate Assistant Commissioner, who, by Ext.P4 common order, set aside
the order of assessment and allowed various claims of the petitioner.
Before the first appellate authority, various grounds were raised year-wise
and detailed consideration was made by that authority and substantial reliefs
were granted. In order to give effect to the appellate order and to pass
modified orders of assessment, the matter was remanded. The State
challenged Ext.P4 order before the Tribunal. However, the Tribunal
dismissed the appeal and confirmed the order Ext.P4 as per its order Ext.P5.
O.P. 1166/1998 :2:
Thereafter, the assessing officer gave effect to the appellate order Ext.P4
and passed modified orders of assessment as per Ext.P6. The Deputy
Commissioner, Agricultural Income tax and Sales Tax, Kozhikode, who is
the second respondent herein, suo motu revised Ext.P6 order by Ext.P11
which was confirmed by the Board of Revenue as per its order Ext.P12.
Aggrieved thereby, petitioner has come up with this original petition.
2. Before the revisional order was passed, notice of proposal as
mandated by the provisions of law was issued as evidenced by Ext.P10.
The first and foremost contention of the learned counsel for the petitioner is
that Ext.P11 order has gone beyond the proposal made in Ext.P10. He took
me in detail to the proposal contained in Ext.P10 and Ext. P11 order in this
regard.
3. It can be seen that one of the issue was regarding the share income
of certain individuals to be clubbed and assessed with the share income of
his/her husband/father, as the case may be. The second issue was as to
whether there is any error in the matter of adopting the income for the year
1989-90 as against the conceded income of higher amount and the third
issue was whether there is any change of the previous year relevant to the
assessment year 1990-91 is correct.
O.P. 1166/1998 :3:
4. The assessee objected to the proposal by filing a written objection.
The main contention was that since the earlier order of assessment was
subject matter of an appeal and a second appeal, there is a merger of the
assessment with the order of the higher authority and as such, it is not open
to invoke the power under Section 75 and revise such consequential orders
by suo motu revision. It is true that power of suo motu revision under
Section 75 could not be invoked on the very same ground which was subject
matter of any appeal or revision before the higher authorities. But as rightly
held by the Authority, nothing is produced to show that the same ground
on which the suo motu power is exercised is dealt with in any appellate or
revisional order as the case may be. If so the bar under Section 75 will not
apply. However, paragraphs C and D of Ext.P11 order refers to the
assessment year 1987-88 and 1988-89. The specific contention raised in the
original petition is that no proposal as such was made in Ext.P10 regarding
these assessment years. In the counter affidavit filed no reference is made
to this contention raised in the original petition. The fact remains that for
the assessment years 1987-88 and 1988-89 there was no proposal for re-
opening of the case invoking the power under Section 75 of the Act. If so,
the order Ext.P11 to the extent it has even directed the assessing authority to
re-open the case relating to the assessment year 1987-88 and 1988-89 is
O.P. 1166/1998 :4:
totally without jurisdiction. Accordingly, the order Ext.P11 and the
directions contained in paragraphs C and D to the extent it relates to the
assessment years 1987-88 and 1988-89 are quashed.
5. It was then contended that “clubbing of the income” is an aspect
which the appellate authority had earlier dealt with to attract the bar under
Section 75. In this regard, it was contended that there was an observation
that the mode of computation in the case of individual assessee is found to
be correct. Learned counsel wants to draw an inference therefrom that the
mode of computation including clubbing of income therefore is thus a
matter dealt with in the appellate order. Learned Government Pleader
contends that no such inference could be drawn in this case. On the other
hand, the specific point raised by the assessee has been dealt with in Ext.P4
appellate order and in no way the question regarding clubbing of income
was specifically dealt with. If so, there is no warrant for making any
inference as contended by the learned counsel appearing on behalf of the
petitioner. On a perusal of Ext.P4 it cannot be said that the issue regarding
clubbing of income of the individual partners regarding their share from the
firm with that of the husband or father, as the case may be, was ever
considered. Hence the order Ext.P11 could not be held to be without
jurisdiction as respect this issue.
O.P. 1166/1998 :5:
6. It is then contended that merely because the process of passing
consequential order of assessment to give effect to the appellate order by
which the income assessed was less than the income conceded is no reason
for suo motu revision. But this is not a point urged by the petitioner before
any of the authorities below.
In the result, the original petition is allowed in part. Ext.P11 to the
extent it directs the assessing officer to re-open the assessment relating to
the year 1988-89 as dealt with in paragraph C and D are quashed.
P.R. RAMAN,
(JUDGE)
knc/-
O.P. 1166/1998 :6:
P.R. RAMAN, J.
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O.P. 1166/1998
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J U D G M E N T
22ND NOVEMBER, 2007.