JUDGMENT
K. S. PARIPOORNAN, J. :
The revision petitioner is a public limited company. It is an assessee under the Agrl. IT Act. The respondent is the Revenue. We are concerned with the asst. yr. 1980-81. The assessment for the year 1980-81 was completed on 21st March, 1986. The Commr. of Agrl. IT initiated suo motu revisional proceedings under s. 34 of the Act as per notice dt. 18th October, 1989, as in his view a sum of Rs. 2,31,239 has not been considered for assessment. He took the view that the income from coffee was fixed at Rs. 5,76,892 as against Rs. 8,08,131 conceded by the assessee. The revision petitioner/assessee objected to the initiation of the said proceedings. It also contested the matter on the merits. One of the objections taken was that the proceedings were initiated not within a reasonable time and so unjustified or barred. The Commr. of Agrl. IT, by proceedings dt. 30th March, 1991, set aside the assessment order made by the assessing authority for the year 1980-81 on 21st March, 1986 and ordered a remit. The assessing authority was directed to dispose of the matter afresh in accordance with law. Aggrieved by the order passed by the Commr. of Agrl. IT dt. 30th March, 1991, the assessee-company has come up revision.
2. We heard counsel for the revision-petitioner. One of the questions raised for decision is whether the suo motu order of revision was passed within a reasonable time. It is common ground that on this aspect of the matter there is a Bench decision of this Court, wherein the same assessee was the petitioner, Nelliampathy Tea & Produce Co. Ltd. vs. Commr. of Agrl. IT (1991) 190 ITR 227 (Ker). This Court held thus, at page 234 of the report :
“…. The normal period within which an assessment, once made, can be reopened under s. 35 of the Act, is five years from the end of the assessment year. Under s. 36, a mistake could be rectified within three years from the date of the assessment order. Once a final assessment is rendered (after the appeal or revision or reference, as the case may be), the finality attached to the order can be put in peril and the assessment can be reopened normally only in proceedings under s. 35 or 36 of the Act. To reopen the final assessment after the said periods, in exercise of the powers under s. 34 of the Act, demands cogent and sufficient reasons. The power vested in the Commr. of Agrl. It should be exercised bona fide and within a reasonable period. The Revenue should be able to demonstrate that there were circumstances beyond control or other supervening events or insurmountable difficulties for not setting in motion the proceedings under s. 34 of the Act within the normal period provided in ss. 35 and 36 of the Act. Whether there were exceptional or extenuating circumstances, explaining the reason for not setting in motion the proceedings under s. 34 of the Act within the normal period, to revise or reopen an assessment which will affect the assessee adversely, would depend upon the facts and circumstances of each case. It should be remembered that the statutory power conferred for public purposes is conferred, as it were, upon trust, not absolutely, and it can validly be used only in the right and proper way, which the legislature, when conferring it, is presumed to have intended. In a system based on the rule of law, there is no unfettered or untrammelled discretion in any statutory or public authority.”
Again at page 235 of the report, this Court held as follows :
“….. Since the question whether the power has been exercised within a reasonable period depends upon the facts of each case, it is initially for the statutory authority before whom such objection is raised to advert to all the facts and circumstances and then come to a decision on the said question. That has not been done in this case.”
In the order of revision passed by the Commr. of Agrl. IT dt. 30th March, 1991, this aspect has not been pointedly adverted to. There is no discussion or finding on that score. The question raised is fundamental. If the proceedings are unreasonably delayed, as held by this Court in the aforesaid reported decision, there is no need to adjudicate the matter on the merits.
3. In this case, we are concerned with the asst. yr. 1980-81. Proccedings under s. 35 of the Act should have been initiated on or before 31st March, 1986. Proceedings, if any, under s. 36 of the Act should have been passed on or before 21st March, 1989. The above outer limits under ss. 35 and 36 of the Act are based on the fact that the assessment order for the year 1980-81 was passed on 21st March, 1986. Even the notice initiating the suo motu revision proceedings is dt. 18th October, 1989. The order was passed on 30th March, 1991, long after the period prescribed under ss. 35 and 36 of the Act. It is for the Revenue to demonstrate that there were circumstances beyond control or other supervening events or insurmountable difficulties for not setting in motion the proceedings under s. 34 of the Act within the normal period provided in ss. 35 and 36 of the Act. This is a question of fact. It is for the statutory authority to apply its mind on this question and render a decision. Since, it has not been done and the issue raised is fundamental, we set aside the order passed by the Commr. of Agrl. IT dt. 30th March, 1991 and order a remit. The Commr. of Agrl. IT will restore the revision proceedings to file and pass fresh orders in accordance with law.
4. The Tax Revision Case is allowed.