JUDGMENT
V.V. Kamat, J.
1. These two references relate to the assessment years 1966-67 and 1967-68, respectively. These references expect our answer to the following three questions :
“1. Whether, on the facts and in the circumstances of the case, the Deputy Commissioner was correct in holding that by seeking to revise the assessment orders for the years 1966-67 and 1967-68 completed as per directions contained in the appellate order, he was not questioning the correctness of the orders of the Appellate Assistant Commissioner in AITA Nos. 461 and 462 of 1971 ?
2. Whether, under the guise of exercise of the power vested in him under Section 34 of the Agrl. Income-tax Act, the Deputy Commissioner can revise the assessment orders made as per the direction contained in an appellate order without getting it cancelled by resort to action under Section 32(2) of the Agricultural Income-tax Act ?
3. Whether, on the facts and in the circumstances of the case, the
Deputy Commissioner had jurisdiction under Section 34 of the Act to
interfere with the findings of the Appellate Assistant Commissioner in his
appellate order Nos. AITA 461 and 462 of 1971 for the assessment years
1966-67 and 1967-68 ?”
2. In essence the questions relate to the pivotal question as to whether the Deputy Commissioner of Agrl. Income-tax and Sales-tax, Central Zone, Ernakulam, while acting in revision under the provisions of Section 34 of the Kerala Agrl. Income-tax Act, 1950, acted with jurisdiction in regard thereto.
3. Although not wholly necessary, it would be customary to lay down the necessary factual matrix. The assessee, Sri P. P. Anthappan, West Fort, Trichur, has the main source of income from pineapple cultivation. Initially, with regard to the assessment year 1966-67, the Agricultural Income-tax Officer, Trichur, by the order dated May 8, 1967, fixed the net agricultural” income at Rs. 64,92,6.75.
4. There was an appeal before the Appellate Assistant Commissioner and in it there had been a challenge relating to the average number of pineapples grown as held by the assessing authority, naturally from an acre of land. By order dated January 31, 1968, the Appellate Assistant Commissioner remanded the matter to the assessing authority to conduct
inspection and spot study, both with reference to the planted area and yielding area. In the process there was a second order dated May 23, 1968, of the trial authority, Agricultural Income-tax Officer, whereby it was estimated that 3,700 fruits per acre would be the average with reference to 170.29 acres of land under cultivation for pineapple, each pineapple weighing 11/2 kgs., on an average fetching a value of 38 paise per kg. at that time.
5. This order dated May 23, 1968, was taken up again in appeal, and this time the dispute was relating to the extent of pineapple cultivation leaving aside the question of average to a situation of finality.
6. The Appellate Assistant Commissioner modified the assessment order and this led the assessee to approach the Agricultural Income-tax Appellate Tribunal, with regard to his still remaining grievances.
7. Then there was yet an order of remand by the Tribunal directing the Inspecting Assistant Commissioner (Special) to conduct a local inspection once again for the third time. Of course, on all these occasions it was after giving the assessee an opportunity to present himself on the occasions.
8. The Inspecting Assistant Commissioner (Special) carried out local inspection on May 23, 1970, and by the order dated March 20, 1971, the assessment was completed as per the directions of the Tribunal. By the said order the effective area under pineapple cultivation was fixed at 129.05 acres. It appears that this situation after the remand by the Tribunal was also taken up in appeal again before the Appellate Assistant Commissioner and there was a modification where under an area of 30 acres was demarcated as occupied by coconut plantation. In addition, the effective area of pineapple cultivation was fixed at 119.05 acres. This was done, as stated above, by the Appellate Assistant Commissioner, dealing with the situation of completion of assessment by the order dated March 20, 1971. The stage of the proceedings reached the appellate order of the Appellate Assistant Commissioner, as stated above, on March 16, 1972 acted upon.
9. It was in the above circumstances the proceedings were taken up by the Deputy Commissioner of Agricultural Income-tax and Sales-tax, Central Zone, Ernakulam, in exercise of his powers under Section 34 of the Act, in revisional jurisdiction taken up suo motu.
10. At the outset the question is as to whether suo motu assumption of jurisdiction by the Deputy Commissioner under Section 34 is justifiable or suffers from lack of jurisdiction. Learned counsel contended that the situation rested with the order dated March 16, 1972, exercised by the
Appellate Assistant Commissioner which could not have been disturbed in any way or interfered with in the like manner in exercise of powers under Section 34 of the Act.
11. Learned counsel urged that if statutory provisions of appeal are not resorted to, resort to suo motu exercise of revisional powers would exhibit not only violation of the principles of natural justice, but also total disregard to the provisions of the Act in regard thereto.
12. In other words, learned counsel submitted referring to the provisions of Section 32 of the Act, that the statute provides, by virtue of the above provision, a statutory appeal against the order dated March 16, 1972, of the assessing authority after remand. It would be seen that it was in pursuance of the order of the Appellate Assistant Commissioner and directions contained therein, a situation of finality was given when the assessment came to be revised accordingly on March 16, 1972. Learned counsel, with reference to the statutory provisions of Section 32, urged that the said situation was statutorily appealable. Learned counsel particularly referred to the provisions of Section 32(2) of the Act containing a provision for direction by the Commissioner to the Agricultural Income-tax Officer to prefer an appeal from such a situation of finality and as a result, learned counsel continued to submit, in a situation where the said appellate statutory remedy became completely time-barred, resort to suo motu exercise of revisional powers could not be appreciated in law.
13. Learned counsel submitted, and in this context emphasised the phrase “subject to the provisions of this Act” appearing in Section 34(4) of the Act to contend that revisional power contemplates its exercise only in accordance with and subject to the provisions of the Act, meaning subject to the provisions of Section 32 of the Act as well, Learned counsel submits in other words that exercise of powers under Section 34 is impermissible in law without exhausting the statutory remedy of appeal under Section 32 of the Act land much, more so when exercise of such power under Section 34 of the Act becomes a time-barred situation with regard to, the remedy under Section 32 of the Act. In essence, as a consequence, learned counsel submits that the situation receiving finality as a result of revised assessment order on March 16, 1972, in pursuance of the Appellate Assistant Commissioner’s modification, in law cannot be disturbed by resort to Section 34 of the Act.
14. The above submissions of learned counsel are well fortified and sustained by the decision of this court of a Bench of co-ordinate jurisdiction in Anantha Mallan v. Commissioner Agrl I. T. [1961] KLJ 980. This
court has considered both the provisions (Sections 32 and 34), and has observed that clearly the Commissioner has been given the right of appeal through his subordinate officers to the statutory Appellate Tribunal as specified therein. This is not only to the Revenue, but also to the assessee. It is observed that the Commissioner also has been vested with the revisory power. It is observed further that Section 32 has been framed on the basis that an independent authority would consider the situation though as a ‘ result of the directions issued by the Commissioner directing the officer to prefer a statutory appeal. It is further observed that the jurisdiction under Section 34, therefore, properly understood, becomes exercisable where the Commissioner does not have in mind any kind of objection in favour of the Department which he would be desirous of adjudicating independently. Because the Commissioner in both the cases has powers, the procedure indicated in Section 32 of the Act should be resorted to in the first instance and resort to exercise of revisional powers would get postponed in a situation where the Commissioner has in mind objections in regard thereto. This court has found this situation violative of the principles of natural justice that the authorities as far as possible with biased mind having objections must not adjudicate a principle not excluded by the statutory provisions in the Act.
15. The decision offers solution to the questions to be answered by us. The facts show the situation of finality that the order of the Appellate Assistant Commissioner in appeal has resulted in the modification of the assessment in accordance therewith by the order of the assessing authority dated March 16, 1972. In spite of there being statutory appellate remedies, the order is sought to be dealt with suo motu by the Deputy Commissioner under Section 34 of the Act. This is impermissible as discussed hereinbefore.
16. For the above reasons question No. 1 is answered in the negative, in favour of the assessee and against the Revenue. Question No. 2 is also answered in the negative, in favour of the assessee and against the Revenue. Similarly question No. 3 is also answered in the negative, in favour of the assessee and against the Revenue.
17. A copy of this judgment under the seal of the court and the signature of the Registrar shall be forwarded to the Agricultural Income-tax Appellate Tribunal, Addl. Bench, Trichur, as required by law.