{"id":188297,"date":"1976-05-07T00:00:00","date_gmt":"1976-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-agricultural-vs-smt-lucy-kochuvareed-on-7-may-1976"},"modified":"2016-09-23T03:11:53","modified_gmt":"2016-09-22T21:41:53","slug":"commissioner-of-agricultural-vs-smt-lucy-kochuvareed-on-7-may-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-agricultural-vs-smt-lucy-kochuvareed-on-7-may-1976","title":{"rendered":"Commissioner Of Agricultural … vs Smt. Lucy Kochuvareed on 7 May, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Agricultural … vs Smt. Lucy Kochuvareed on 7 May, 1976<\/div>\n
Equivalent citations: 1976 AIR 1681, \t\t 1976 SCR 657<\/div>\n
Author: A Gupta<\/div>\n
Bench: Gupta, A.C.<\/div>\n
           PETITIONER:\nCOMMISSIONER OF AGRICULTURAL INCOME TAX, TRIVANDRUM\n\n\tVs.\n\nRESPONDENT:\nSMT. LUCY KOCHUVAREED\n\nDATE OF JUDGMENT07\/05\/1976\n\nBENCH:\nGUPTA, A.C.\nBENCH:\nGUPTA, A.C.\nSINGH, JASWANT\n\nCITATION:\n 1976 AIR 1681\t\t  1976 SCR  657\n 1976 SCC  (3) 438\n\n\nACT:\n     Kerala Agricultural  Income Tax  Act, 1950,  ss. 34 and\n35-Revisional power  of Commissioner  and assessing 'escaped\nassessment', scope of.\n\n\n\nHEADNOTE:\n     The assessee  made a  full disclosure of his income and\nclaimed\t expenses   incurred  for  the\tmaintenance  of\t his\nimmature rubber\t plantations as deductions. The Agricultural\nIncome Tax  Officer, after  considering the  matter, allowed\nsuch  deductions   as  he  thought  proper.  The  appellant-\nCommissioner, in  exercise of his revisional powers under s.\n34, Kerala  Agricultural Income Tax Act, 1950, issued notice\nto the\trespondent (widow  of  the  assessee)  proposing  to\nrevise the  assessment on  the ground  that  the  deductions\nallowed were excessive. The appellant, after considering the\nrespondent's objections,  held that  the deductions  allowed\nwere excessive\tand remanded  the matter to the Agricultural\nIncome Tax  Officer for\t fresh disposal according to law. At\nthe instance  of the  respondent, the  question whether\t the\nappellant had jurisdiction to pass the order under s. 34 was\nreferred to  the High Court, and the High Court, on the view\nthat it\t was a\tcase of\t re-opening escaped assessment held,\nrelying on  Maharajadhiraj Sir\tKameshwar Singh\t v. State of\nBihar,<\/a> (1959) 37 I.T.R. 388 (SC), that the power of revision\nvested in  the Commissioner under s. 34 could not be invoked\nfor  the  purpose  of  assessing  income  that\thad  escaped\nassessment, and\t that such  income could be assessed only by\nresorting to  the procedure  prescribed by s. 35. within the\ntime limit prescribed therein.\n     Allowing the appeal to this Court,\n^\n     HELD:(1) Every  case of  under-assessment is not a case\nof escaped  assessment. The  Agricultural Income Tax Officer\nmay have  committed an\terror in  allowing the deductions to\nthe extent  he did, but he did so after applying his mind to\nthe claims.  This is not a case where the officer omitted to\nassess any item of income disclosed in the assessee's return\nas in  the case\t relied on by the High Court and as in kamal\nSingh v.  C.I.T. (1959)\t 35 I.T.R.  1 (SC). Therefore, it is\nnot a case of reopening escaped assessment. [662F-H]\n     Deputy  Commissioner  of  Agricultural  Income-tax\t and\nSales Tax,  Quilon and\tanother v.  Dhanalakshmi Vils Cashew\nCo., (1969) 24 S.T.C. 491, followed.\n     (2) Since\tit is  not a case of escaped assessment, the\nappellant had  jurisdiction to\tmake the  order under s. 34.\n[663B]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 793 to
\n794 of 1971.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  order
\ndated the  7th August,\t1970 of\t the Kerala  High  Court  at
\nErnakulam in Income Tax Reference No. 9 of 1968.\n<\/p>\n
     T. S.  Krishnamoorthy Iyer,  N. Sudhakaran and K. M. K.
\nNair; for the Appellent (In CA 793\/71)
\n     K. M. K. Nair; for the appellant (In C.A. 794\/71).\n<\/p>\n
658<\/span><\/p>\n
     D. V. Patel and A. S. Nambiar; for the Respondent.
\n     The Judgment of the Court was delivered by
\n     GUPTA,  J.-One   T.  V.   Kochvared  who  owned  rubber
\nplantations in\tTrichur was  assessed  by  the\tAgricultural
\nIncome-Tax other,  Trichue on  a net agricultural  income of
\nRs. 31,662\/- and Rs 30,856\/- respectively for the assessment
\nyears  1959-60\t and  1960-61.\t The  assessee\thad  in\t his
\npossession immature  rubber plantation\tcovering  193  acres
\ndung the  assessment year 1960-61. In computing their income
\nfor the\t said two years. the Agricultural Income-tax Officer
\nhad disallowed\tout of\tthe expenses  clammed for the upkeep
\nand maintenance\t of the\t    immature area  Rs. 2500\/-for the
\nyear 1959-60  and  Rs.3500\/-for\t the  year  1960-61.  T.  V.
\nKochuvareed died  in 1961 leaving behind him as his heir and
\nlegal representative  his wife\twho is the respondent before
\nus. On\tMarch 13,  1963\t the  Commissioner  of\tAgricultural
\nIncome-tax issued  a notice  under section  34 of the Kerala
\nAgricultural Income-tax\t Act, 1960  to the respondent, which
\nwas served  on her  on March  15, 1963,\t proposing to revise
\nsuo motu the assessment for the said two year son the ground
\nthat the  deductions allowed  were excessive and without any
\nproper basis  as a  result of which Rs. 16,800\/-for the year
\n1959-60,  and\tRs.   25,800\/-for   1960-61   had   “escaped
\nassessment”. The respondent was asked to file objections, if
\nany   within fifteen  days of the receipt of the notice. The
\nrespondent in  her objection  contended\t that  the  proposed
\nrevision of  her husband’s  income which  was said to have ”
\nescaped assessment”  was outside the scope of section 34. On
\nthis objection another notice was served on her on September
\n26, 1966  stating that\tthe expression\t“escaped  assessment
\n“used in  the earlier  notice was inadvertent and asking the
\nrespondent to  file further  objections, if she liked, after
\nthis eradication. The respondent filed further objections on
\nOctober 12,  1966 which\t the Commissioner  rejected  by\t his
\norder dated  August 23,\t 1967 and  remanded the cases to the
\nAgricultural Income-tax\t officer  for  fresh  disposal.\t The
\nrelevant part of this order is as follows:\n<\/p>\n
\t  “In  these   circumstances   I   find\t  that\t the
\n     disallowance of  Rs. 2500\/-  for 1959-60 and Rs. 3500\/-
\n     for 1960-61  towards upkeep and maintenance of immature
\n     area is  irregular as  it is  not based on any rational
\n     method. The  orders of  assessment for  these years are
\n     therefore set  aside and  the cases are remanded to the
\n     Agricultural Income-tax  Officer,\tTrichur,  for  fresh
\n     disposal according\t to law after examining each item of
\n     expenditure individually  and the\tgeneral\t charges  by
\n     applying the  principles laid  down by  the Kerala High
\n     Court in its judgment reported in (1964) 58 ITR 629.”<\/p>\n
At the\tinstance  of  the  respondent  the  Commissioner  of
\nAgricultural Income-tax\t referred the  following question of
\nlaw to\tthe High  Court of Kerala under section 60(2) of the
\nKerala Agricultural Income-Tax Act, 1950:\n<\/p>\n
659<\/span><\/p>\n
\t  Whether on  the facts\t and in the circumstances of
\n     the   case the Commissioner has jurisdiction to pass an
\n     order in this case under section 34 of the Agricultural
\n     Income-Tax Act, 1950.<\/p><\/blockquote>\n
     The High  Court by\t a majority  held that\tthe power of
\nrevision vested\t in the Commissioner under section 34 of the
\nAct could not be invoked for the purpose of assessing income
\nthat had “escaped assessment:” and that such income could be
\nassessed only by resorting to the procedure under section 35
\nof the\tAct. In these appeals by special leave the appellant
\nquestions the correctness of this decision.\n<\/p>\n
     It is  necessary to refer to the relevant provisions of
\nthe Act before proceeding to consider the contentions of the
\nparties. Section  3 provides  that  agricultural  income-tax
\nshall be  charged for  each  financial\tyear  on  the  total
\nagricultural income  of the  previous year  at the  rate  or
\nrates  specified   in  the   Schedule  to   the\t Act.  Total
\nagricultural income  is\t defined  in  section  2(s)  as\t the
\naggregate of  all agricultural income mentioned in section 4
\ncomputed in  accordance with  the provisions  of  section  5
\nincluding all income of the description specified in section
\n9 and  all receipts  of the description specified in section
\n10(a), (c) and (d). Section 5 enumerates the deductions from
\nthe total  income which\t have to  be made  in computing\t the
\nagricultural income. Section 17(1) of the Act requires every
\nperson whose  total agricultural  income during the previous
\nyear  exceeded\t the  limit   which  is\t not  chargeable  to
\nagricultural income-tax,  to  furnish  to  the\tAgricultural
\nIncome-tax officer  a return  stating his total agricultural
\nincome in  that year and the expenditure incurred by him out
\nof that\t income. Section  18 deals  with the  powers of\t the
\nAgricultural  Income-tax   officer  to\t assess\t the   total
\nagricultural income  of the  assessee and  determine the sum
\npayable by  him.  Section  19  authorises  the\tAgricultural
\nIncome-tax officer to cancel the assessment in certain cases
\nat the\tinstance  of  the  assessee  and  to  make  a  fresh
\nassessment in  accordance with the provisions of section 18.
\nSection 31  provides an appeal to the Assistant Commissioner
\nagainst any  order of  assessment with which the assessee is
\ndissatisfied. Sub-section  (7) of  the section\trequires the
\nAssistant Commissioner\tto communicate\tthe orders passed by
\nhim disposing  of the sessee objecting to an order passed by
\nan  Assistant  Commissioner  may  appeal  to  the  appellate
\nTribunal.  Sub-section\t (2)  of  the  section\tpermits\t the
\nCommissioner if\t he objects  to\t any  order  passed  by\t the
\nAssistant Commissioner\tunder  section\t31,  to\t direct\t the
\nAgricultural Income-tax\t Officer to  appeal to the appellate
\nTribunal against  such order.  Subsection (5)  of section 32
\nprovides that  the  appellate  Tribunal\t after\tgiving\tboth
\nparties an  opportunity of  being heard\t may pass such order
\nthereon as  he thinks  fit.  The  tribunal  is\trequired  to
\nCommunicate  the   order  to   the  assessee   and  to\t the
\nCommissioner. Section  34 and  section 35  are the  two most
\nimportant section  for the purpose of these appeals. Section
\n34 which confers on the Commissioner revisional powers is in
\nthese terms:\n<\/p>\n
660<\/span><\/p>\n
\t  “34. Revision.-(1).  The Commissioner\t may, of his
\n     own motion\t or on\tapplication by an assessee, call for
\n     the record\t of any\t proceeding under this Act which has
\n     been taken\t by any authority subordinate to him and may
\n     make such enquiry or cause such enquiry to be made and,
\n     subject to\t the provisions\t of this  Act, may pass such
\n     orders thereon as he thinks fit:\n<\/p><\/blockquote>\n
\t       Provided that  he shall\tnot pass  any  order
\n\t       prejudicial to  an assessee  without  hearing
\n\t       him or giving him a reasonable opportunity of
\n\t       being heard
\n\t       Provided\t further   that\t an   order   passed
\n\t       declining to interfere shall not be deemed to
\n\t       be an order prejudicial to the assessee.\n<\/p><\/blockquote>\n<\/blockquote>\n
\t  (2)  Any order  passed under\tsubsection (1) shall
\n\t       be final subject to any reference that may be
\n\t       made to the High Court under section 60.”\n<\/p><\/blockquote>\n
Section 35  which  deals  with\tincome\tescaping  assessment
\nreads:\n<\/p>\n
\t  “35. Income  escaping assessment.(1)\tIf  for\t any
\n     reason agricultural income chargeable to tax under this
\n     Act has escaped assessment in any financial year or has
\n     been assessed  at too  low\t a  rate,  the\tAgricultural
\n     Income-tax Officer may, at any time within three years,
\n     of that  end of that year serve on the person liable to
\n     pay the  tax or  in  the  case  of\t a  company  on\t the
\n     principal officer\tthereof a  notice containing  all or
\n     any of  the requirements  which may  be included  in  a
\n     notice under  sub-section (2)  of section\t17  and\t may
\n     proceed to\t assess or  re-assess such  income  and\t the
\n     provisions of  this Act  shall so\tfar as may be, apply
\n     accordingly as if the notice were a notice issued under
\n     that sub-section;\n<\/p><\/blockquote>\n
\t  Provided that the tax shall be charged at the rate
\n     at which  it would have been charged if such income had
\n     not escaped  assessment or full assessment, as the case
\n     may be;\n<\/p><\/blockquote>\n
\t  Provided further  that the Agricultural Income-tax
\n     Officer shall not issue a notice under this sub-section
\n     unless he has recorded his reasons for doing so.
\n\t  (2) No  order of assessment under section 18 or of
\n     assessment or  reassessment under\tsub-section  (1)  of
\n     this section  shall be  made after\t the expiry of three
\n     years  from   the\tend   of  the\tyear  in  which\t the
\n     agricultural income was first assessable;
\n\t  Provided that where a notice under sub-section (1)
\n     has been  issued within  the time\ttherein limited, the
\n     assessment or  reassessment to  be made in pursuance of
\n     such notice  may be  made before the expiry of one year
\n     from the  date of\tthe service of the notice even if at
\n     the time  of the  assessment or  reassessment the three
\n     years aforesaid have already elapsed;\n<\/p><\/blockquote>\n
661<\/span><\/p>\n
\t  Provided further  that nothing  contained in\tthis
\n     section limiting  the time\t within which any action may
\n     be taken  or any  order, assessment or reassessment may
\n     be made  shall  apply  to\ta  reassessment\t made  under
\n     section 19\t or to an assessment or reassessment made in
\n     consequence of,  or to  give effect  to any  finding or
\n     direction contained  in, an  order\t under\tsection\t 31,
\n     section 32, section 34 or section 60.\n<\/p><\/blockquote>\n
\t  (3) In  computing the period of limitation for the
\n     purposes of  this section,\t any period during which the
\n     assessment\t proceeding   is  stayed   by  an  order  or
\n     injunction of  any court  or other\t competent authority
\n     shall be excluded.”<\/p><\/blockquote>\n
     Section 35\t as it\toriginally stood  contained only the
\nprovision now  contained in  sub-section (1)  including\t the
\nfirst proviso.\tThe second  proviso to\tsub-section (1), and
\nsub-sections (2)  and (3)  were introduced  and the original
\nprovision was  renumbered as  sub-section (1) by an amending
\nAct in\t1964, but  the newly  added  provisions\t were  given
\neffect from April 1, 1958. Section 35 as extracted above was
\ntherefore, applicable  in  a  proper  case  during  the\t two
\nassessment years we are concerned with. It would appear that
\nsub-section (2)\t prescribes a  time limit of three years for
\nreassessment under  sub-section (1) of this section from the
\nend of\tthe year  in which the agricultural income was first
\nassessed though the first proviso to sub-section (2) extends
\nthe time  for reassessment in a case where notice under sub-
\nsection (1)  had been  issued within  the time prescribed by
\nthe sub-section,  till the  expiry of one year from the date
\nof service of the notice even if at the time of reassessment
\nthe prescribed period of three years had elapsed. The second
\nproviso to  sub-section (2)  states that  the limitation  of
\ntime  prescribed   by  section\t35  will  not  apply  to  an
\nassessment  or\treassessment  made  in\tconsequence  of\t any
\ndirection contained  in an  order under\t section 31, section
\n32, section  34 or  section  60.  Section  36  empowers\t the
\nauthority which\t passed an  order  on  appeal  or  revision,
\nwithin three  years from  the date  of such  order, and\t the
\nAgricultural Income-tax\t Officer within three years from the
\ndate of\t any assessment\t made by him, to rectify any mistake
\napparent from the record of the appeal, revision, assessment
\nor refund  as the case may be. Sub-section (1) of section 60
\nprovides that  the assessee  or the Commissioner may require
\nthe appellate  tribunal to  refer  to  the  High  Court\t any
\nquestion of law arising out of an order under section 32(5).
\nSub-section (2)\t of section  60 permits\t an assesee  who  is
\nserved with  a notice  of an order under section 34 which is
\nprejudicial to\thim to\trequire the Commissioner to refer to
\nthe High  Court any  question of  law arising  out  of\tsuch
\norder.\n<\/p>\n
     The majority  decision of\tthe High Court took the view
\nthat this  was a  case of  escaped assessment  and that\t the
\npower of  revision conferred  on the Commissioner by section
\n34 of  the Act\tcould not  be utilised\tfor the\t purpose  of
\nreassessment of\t income that escaped assessment disregarding
\nthe provisions\tof section 35. Sub-section (1) of section 34
\nmakes it  clear that  the power\t of revision  is exercisable
\n“subject to  the provisions of this Act.” It was pointed out
\nin the majority judgment that section 35 contains a specific
\nprovision  for\treassessment  of  income  that\thad  escaped
\nassessment and\tit was\theld that  revisional  powers  under
\nsection 34  could be  availed of  to reopen cases of escaped
\nassessment
\n662<\/span>
\nonly within  the time  limit  and  in  accordance  with\t the
\nprocedure prescribed  by section  35. Before  us, Mr. Patel,
\nlearned counsel\t for the  respondent,  reiterated  the\tsame
\ncontention.  Mr.   Krishnamurthy  Iyer\t appearing  for\t the
\nappellant challenged  the decision  of the High Court on two
\ngrounds: (1)  the income sought to be reassed was not income
\nthat had  “escaped” assessment\tand, as such, the provisions
\nof section  35 are not relevant for the present purpose, and
\n(2) assuming  this was a case of income escaping assessment,
\neven then  the second  proviso to sub-section (2) of section
\n35  removes   the  bar\t of  time   for\t any  assessment  or
\nreassessment made  to  give  effect  to\t a  direction  under
\nsection 34.  On the  first question  the High  Court  found,
\nrelying on  the decision of this Court in Maharajadhiraj Sir
\nKameshwar Singh\t v. State  of Bihar,<\/a> that this was a case of
\nescaped\t income.  In  Kameshwar\t Singh’s  case\tone  of\t the
\nprovisions that came up for interpretation was section 26 of
\nthe Bihar Agricultural Income-Tax Act, 1938 which is similar
\nin many\t respects  to  section\t35(1)  of  the\tAct  we\t are
\nconcerned with\tin this\t appeal. It  was held  in Kameshawar
\nSingh’s case  that under  section 26  of the  Bihar Act, the
\nAgricultural Income-tax Officer was competent to “assess any
\nitem of\t income which  he had  omitted to  tax earlier, even
\nthough in  the return  that  income  was  inlcuded  and\t the
\nAgricultural Income-tax\t Officer then  thought that  it\t was
\nexempt”. The  same view\t was taken in an earlier decision of
\nthis Court,  Kamal Singh v. Commissioner of Income-tax, that
\n: “even\t if the\t assessee has  submitted  a  return  of\t his
\nincome, case  may well\toccur where  the whole of the income
\nhas not\t been assessed garded as having escaped assessment”.
\nBut the\t question that\tarises in  the case before us is not
\ncovered by  either of  these decisions.\t This is  not a case
\nwhere the  Agricultural Income-tax Officer omitted to assess
\nany item  of income disclosed in the assessee’s return. Here
\nthe assessee  made a  full  disclosure\tof  his\t income\t and
\nclaimed certain\t deductions. It\t is not disputed that he was
\nentitled to claim some dedcations for the maintenance of the
\nimmature  rubber   planation.  The  Agricultural  Income-tax
\nOfficer may  have committed  an error in allowing deductions
\nto the\textent he did, but he did so after applying his mind
\nto the\tclaim. Every  case of under assessment is not a case
\nof escaped  assessment. The  view we take finds support from
\nthe  decision  of  this\t Court\tin  Deputy  Commissioner  of
\nAgricultural Income-tax and Sales Tax, Quilon and another v.
\nDhanalakshmi Vilas Cashew Co.\n<\/p>\n
     On the  other question,  the High\tCourt held  that the
\norder of the Commissioner directing the Agricultural Income-
\ntax Officer  to reassess  the income  for the  two years was
\nbad, having  been  made\t after\tthe  expiry  of\t the  period
\nprescribed by section 35 for the reassessment of income that
\nhad escaped assessment. For the appellant it was contended
\n663<\/span>
\nthat the second proviso to section 35 removed the limitation
\nof time in the case of a reassessment made in consequence of
\na direction  or order under section 34. As we have held that
\nthis was  not a\t case  of  escaped  assessment,\t this  other
\nquestion does not arise for consideration.\n<\/p>\n
     In our  opinion  the  Commissioner\t in  this  case\t had
\njurisdiction to\t make the order he did under section 34, and
\nthe question  referred to the High Court under section 60(2)
\nshould therefore be answered in the affirmative. The appeals
\nare allowed, but in the circumstances of the case we make no
\norder as to costs.\n<\/p>\n
V.P.S.\t\t\t\t\t    Appeals allowed.\n664<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Agricultural … vs Smt. Lucy Kochuvareed on 7 May, 1976 Equivalent citations: 1976 AIR 1681, 1976 SCR 657 Author: A Gupta Bench: Gupta, A.C. PETITIONER: COMMISSIONER OF AGRICULTURAL INCOME TAX, TRIVANDRUM Vs. RESPONDENT: SMT. LUCY KOCHUVAREED DATE OF JUDGMENT07\/05\/1976 BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. SINGH, JASWANT CITATION: 1976 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-188297","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Agricultural ... vs Smt. 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