O. Thomas Childrens Benefit Trust vs Commissioner of Agricultural Income Tax

K.S. Paripoornan, J.—Many questions arise for consideration in these two original petitions. The petitions are filed u/s 60(3) of the Kerala Agricultural Income Tax Act, 1950. The petitioners/assessees pray that this court may direct the Commissioner of Agricultural Income Tax to refer certain questions of law which, according to them, arise out of the revisional orders passed by the Commissioner of Agricultural Income tax.

We heard counsel. The learned Government Pleader took a preliminary objection that the original petitions will not lie. It was brought to our notice that an assessee worsted by a petition u/s 60(2) of the Act alone can file an application u/s 60(3) of the Act. In order to maintain an application u/s 60(2) of the Act, the order passed by the Commissioner of Agricultural Income Tax should be one enhancing the assessment or otherwise prejudicial to the assessee. An order passed in a revision, at the instance of an assessee, declining to interfere or modifying the order of assessment will not be an order prejudicial to the assessee within the meaning of the second proviso to Section 34 of the Agricultural Income tax Act. We find force in this submission.

We, therefore, hold that these two original petitions, filed u/s 60(3) of the Act, are not maintainable, since the orders passed in revision were rendered by the Commissioner of Agricultural Income Tax on applications filed by the assessees and they cannot be considered to be orders either enhancing the assessment or otherwise prejudicial to the assessee within the meaning of Section 60(2) of the Act read with the second proviso to Section 34 of the Act. We are fortified in this view by the Full Bench decision of this court in JACOB Vs. ADDITIONAL DEPUTY COMMISSIONER OF AGRICULTURAL Income Tax AND ANOTHER., In this view of the matter, we hold that these two original petitions are not maintainable. They are dismissed.

Counsel for the petitioners, Dr. K. B. Mohamed Kutty, prayed that the dismissal of these two original petitions shall not in any way affect or prejudice his right to assail the orders passed in revision u/s 34(2) of the Act in a petition filed under Article 226 of the Constitution of India. We make it clear that the dismissal of these petitions shall not in any way act as a bar or preclude the assessees from assailing the revisional orders in appropriate proceedings, including a petition that may be filed under Article 226 of the Constitution. We make this position clear.