S.B. Muthumunia Mudaliar vs Commissioner of Agricultural Income Tax and Another

Ramaprasada Rao, J.—For the assessment year 1958-59, the petitioner was assessed for/agricultural Income Tax u/s 17(4), Madras

Agricultural Income Tax Act, 1955. The original order is dated April 13, 1961. It appears that proceedings were taken u/s 35 of the Act and the

case of the petitioner is that no notice u/s 35 was issued to him by the appropriate authority and such a notice, even if it emanated from the

statutory authority, was not served on him or acknowledged by him. The petitioner''s further case is that in spite of the laches as above, an enquiry

was held u/s 35 of the Act and ultimately the order was revised. The petitioner filed a revision petition before the Commissioner of Agricultural

Income Tax and contended that he was not served with the statutory notice u/s 35 either in the normal way or in the prescribed form and also

contended on merits that the attempt to revise the order was not justified. We are not here concerned with the merits as they were not dealt with

by the Commissioner fully. The main contention raised before the Commissioner was that there was no acknowledgment of any notice issued u/s

35 and, therefore, the reassessment order is illegal and unsustainable. The Commissioner of Agricultural Income Tax, however, relied upon the

signature of the petitioner in a blank form of a notice captioned to be one generally issued in proceedings u/s 35 of the Act. The records have been

brought on the rule nisi and I perused the same, and in particular scrutinised the so-called notice issued by the department to the petitioner u/s 35

of the Act. The notice is a printed form which is generally used when proceedings u/s 35 are initiated. The form has not been filled up. No one has

signed the same. The sine qua non for action u/s 35 is that the Agricultural Income Tax Officer should believe that there has been an escapement of

assessment and such belief could rest upon any reason. I am not here dealing with the scope of the expression ""any reason"", as in the instant case

no reason has been given. The Section certainly does not contemplate the issue of a notice u/s 35 for ""no reason"" whatever. The notice scrutinised

by the Commissioner is blank. No part of it is filled up with any material or matter so as to make it appear that there was any reason at all for the

Agricultural Income Tax Officer to act u/s 35. The fact that an enquiry was held on such an inchoate and irregular notice u/s 35 does not make any

difference at all. But, this enquiry was made much of by the Commissioner when he observed that the revision-petitioner did appear before the

officer on July 8, 1963, and participated in the proceedings taken u/s 35. The error apparent lies in the fact that the Commissioner thought and

presumed that the Agricultural Income Tax Officer was enquiring into a proceeding initiated by him u/s 35. I have already stated there was no

proper initiation of the proceedings as no notice u/s 35 was given by him and as the blank notice on which reliance was placed does not take

anyone into the realities of the situation. Such being the state of affairs, it would be unreasonable to conclude that the petitioner participated in

proceedings u/s 35 of the Act on an issue of notice u/s 35 of the Act. In the instant case everything seems to be irregular from the inception. The

Commissioner failed to exercise jurisdiction vested in him by law. There is therefore an apparent error as well as an irregular exercise of jurisdiction

which is patent in the challenged order. I am unable to agree with the conclusion of the Commissioner that there was proper and sufficient service

of notice within the meaning of the provisions of the Act.

As already stated it is not necessary for me to consider the merits as they were not fully appreciated by the Commissioner himself when he

heard the revision petition and ultimately dismissed it. As I am satisfied that the petitioner was not properly apprised of the starting of the

proceedings u/s 35 of the Act, the rule nisi has to be made absolute. The writ petition is allowed and there will be no order as to costs.