Commissioner of Agricultural Income Tax vs Mrs. Alekutty George

K. S. Paripoornan, J.—At the instance of the Revenue, the Kerala Agricultural Income Tax Appellate Tribunal, Additional Bench, Kottayam, lias referred the following questions of law, u/s 60(1) of the Agricultural Income Tax, for the decision of this court :

" 1. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that the orders passed u/s 36 of the Agricultural Income Tax Act is to be read with the original order u/s 18 and that orders u/s 36 of the Agricultural Income Tax Act can be treated only as part of the original orders ?

Whether the Tribunal is justified in holding that .orders u/s 36 of the Agricultural Income Tax Act are appealable?"

The respondent was assessed for and on behalf of her late husband for the years 1973-74, 1974-75 and 1975-76, by orders dated March 31, 1979, March 28, 1980, and March 10, 1981. On scrutiny, it was found that the yield estimated from some property was lower than that conceded by the assessee. The assessment orders for the years 1973-74 and 1974-75 were rectified by the Agricultural Income Tax Officer, u/s 36 of the Act by order dated March 24, 1981. Similarly, certain other errors which had crept into the assessment orders for all the three years were rectified as per a common order dated January 4, 1982, u/s 36 of the Act, by the Agricultural Income Tax Officer. The rectified assessment orders were challenged by the assessee in first appeals before the Appellate Commissioner of Agricultural Income Tax and Sales Tax. By order dated March 26, 1987, he rejected the appeals. He held that the orders were passed u/s 36 of the Act and no appeal would lie against such an order. The matter was challenged in second appeals by the assessee. The Appellate Tribunal, by its common order dated March 14, 1988, held that the orders passed u/s 36 have to be read with the original orders passed u/s 18 of the Act, and so viewed, the orders passed u/s 36 of the Act can be treated only as part of the original orders and so the orders arc appealable. The decision rendered by the Appellate Assistant Commissioner was reversed. The matter was remitted to him for fresh disposal. It is aggrieved by this common order passed by the Appellate Tribunal, dated March 14, 1988, holding that the appeals filed before the Appellate Assistant Commissioner are maintainable, that the Revenue filed applications before the Tribunal for referring certain questions of law for the decision of this court and, accordingly, the questions, formulated hereinabove, have been referred by the Agricultural Income Tax Appellate Tribunal for the decision of this court.

We heard counsel. In the light of the decision of the Supreme Court in S. Sankappa and Others Vs. The Income Tax Officer, Central Circle II, Bangalore, , the proceedings taken for rectification of assessment to tax u/s 36 of the Kerala Agricultural Income Tax Act should be held to be "proceedings for assessment". The above decision was followed by the Supreme Court in Kishanlal Harichand Vs. Income Tax Officer, Nizamabad, . The legal effect flowing from an order passed rectifying the original assessment came up for consideration before the Supreme Court in International Cotton Corporation (P) Ltd. v. CTO [1975] 35 STC 1. Delivering the judgment of a four-member Bench, Alagiriswami J. at page 12 of the report, stated the law thus :

" The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance. What was sought to be rectified was the assessment order rectified as a consequence of this court''s decision in Yaddalam''s case [1965] 16 STC 231. After such rectification the original assessment order was no longer in force and that was not the order sought to be rectified."

The above decision was followed by the Supreme Court in Deputy Commissioner of Commercial Taxes v. (H. R.) Sri Ramulu [1977] 39 STC 177. It is fairly clear that once a rectification order is passed, the original assessment order is no longer in force. It ceases to have any legal validity. After the rectification proceedings, neither the original assessment order nor the order passed in rectification proceedings have any legal validity. It is only the assessment order passed giving effect to the rectification proceedings that will be the assessment order for the year in question. This position is fairly settled by the following decisions: Vedantham Raghaviah Vs. Third Additional Income Tax Officer, City Circle V, Madras., ; S. Arthanari Vs. First Income Tax Officer, Salem, and Another, and Jeewanlal (1929) Ltd. Vs. Additional Commissioner of Income Tax and Others, . In Jeewanlal (1929) Ltd. Vs. Additional Commissioner of Income Tax and Others, , Sabyasachi Mukharji J., as he then was, followed the two Vedantham Raghaviah Vs. Third Additional Income Tax Officer, City Circle V, Madras., and S. Arthanari Vs. First Income Tax Officer, Salem, and Another, . Ram Prasada Ra) J., delivering the judgment in S. Arthanari Vs. First Income Tax Officer, Salem, and Another, at page 832, stated the law thus :

" But, once it is invoked and an order of rectification is made, the order of assessment becomes merged in the order corrected by rectification. The corrected order is then the ''statutorily deemed order of assessment'' for it would be anomalous to hold that even after correction, a mistaken order ought to prevail. In cases where assessment orders are rectified, the original orders whose mistakes and errors are corrected no longer can hold the field. As pointed out in Vedantham Raghaviah Vs. Third Additional Income Tax Officer, City Circle V, Madras., :

'' Once an order of rectification is passed the assessment itself is modified and what remains is not the order of rectification, but only the assessment as rectified''."

In view of the above statement of the law, we have no doubt in our mind that the Agricultural Income Tax Appellate Tribunal was justified in holding that the appeals filed from the rectified assessment orders are maintainable. The Appellate Assistant Commissioner was in error in holding that the appeals are not maintainable. We, therefore, hold that the Agricultural Income Tax Appellate Tribunal was justified in reversing the order passed by the Appellate Assistant Commissioner and remitting the matter for fresh disposal.

We answer both the questions referred to this court in the affirmative against the Revenue and in favour of the assessee.

Before this court, the respondent/assessee was not represented. We requested Mr. Roy Chacko, advocate, to. assist us as amicus curiae. Counsel took enormous pains to find out authorities and place them before us. We place on record our appreciation of the services rendered by Mr. Roy Chacko.

A copy of this judgment, under the seal of this court and the signature of the Registrar, shall be forwarded to the Kerala Agricultural Income Tax Appellate Tribunal, Trivandrum.