Kulithalai Cane Farms P. Ltd. vs Agricultural Income Tax Officer and Another

T. Meenakumari, J.—This writ petition is for issuance of a writ of prohibition or any other appropriate writ, direction or order prohibiting the

first respondent from collecting the amount from third parties towards the alleged agricultural Income Tax arrears of the petitioner.

The case of the petitioner is that the petitioner is the managing director of the petitioner''s firm and the allegation of the petitioner is that the first

respondent did not have the power to issue garnishee orders directing third parties to pay the amount on account of default, which necessitated the

petitioner to file a writ of prohibition prohibiting the respondent from exercising the powers which are not granted to him under the statute.

The petitioner states that he is an assessee on the file of the first respondent. On or about July 1, 1954, Cauvery Sugars and Chemicals Limited,

leased out the lands to the petitioner. Later on, disputes arose between the petitioner and the first respondent. The petitioner filed a suit which was

decreed, against which the first respondent filed an appeal which was also dismissed. The matter went up to the Supreme Court, and on

November 19, 1986, there was a compromise and a compromise decree was passed. As per the compromise decree, Cauvery Sugars did not

pay the amount and the petitioner filed a petition before the Supreme Court for setting aside the compromise decree.

It is also stated that the petitioner was an assessee on the file of the Agricultural Income Tax Officer, Saidapet, and without giving any notice to

the petitioner, shifted the assessment circle from Saidapet to Trichy. Assessment for the assessment year 1979-80 was completed by the first

respondent. The assessments are best judgment assessments u/s 17(4) of the Act. The petitioner filed returns for all the years in respect of 1981-

82, the assessment is not completed and the petitioner returned a loss of Rs. 72,237 for the assessment years 1984-85, 1985-86 and 1986-87.

The first respondent again made best judgment assessments u/s 17(4) of the Act. Again revision petitions were filed before the Commissioner of

Agricultural Income Tax, Madras, and the Commissioner of Agricultural Income Tax accepting the contention of the petitioner, directed the officer

to make an assessment u/s 17(3) of the Act, after verifying the account books. The case of the petitioner is that the assessment is an illegal one.

The tax determined on best judgment basis for the earlier years from 1979-80 to 1983-84 comes to Rs. 4,96,326. The petitioner is a limited

company and for all the years, the accounts are regularly audited.

The case of the petitioner is that nearly 390 acres of lands are now under illegal occupation of trespassers. The first respondent had nearly

collected a sum of Rs. 5,00,000 towards agricultural income tax and the collection was not given credit to. The petitioner also sent a legal notice

dated August 1, 1988, to the first respondent directing him to give account for the amount collected. An order of attachment was passed by the

Agricultural Income Tax Officer on September 1, 1990, showing the total amount of arrears as Rs. 8,46,902.05 for the assessment years 1979-80

to 1988-89.

Learned counsel for the petitioner submitted that the order of attachment is not supported by any provisions of law. He has also brought to the

notice of this court, the provisions with regard to the recovery of tax u/s 40 of the Tamil Nadu Agricultural Income Tax Act, 1955. Section 40 of

the Act deals with the recovery of tax and penalties and Section 41 deals with the mode of recovery. Section 41 reads as follows :

(1) The Agricultural Income Tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due

from an assessee and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it

were an arrear of land revenue :

Provided that, without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the

powers which under the Code of Civil Procedure, 1908 (Central Act V of 1908), a civil court has for the purpose of the recovery of an amount

due under a decree.

(2) No proceeding for the recovery of any sum payable under this Act shall be commenced after the expiration of three years from the latest day

fixed for payment in the notice of demand served u/s 30 or where the assessee has been treated as not being in default under the proviso to

Section 40 pending his appeal, after the expiration of three years from the date on which the appeal is decided.

According to the above provision, it is incumbent on the part of the Agricultural Income Tax Officer to forward a certificate under his signature

specifying the arrears amount due from an assessee.

The learned Government advocate has produced the records to show that a letter has been addressed to the District Revenue Officer by the

Agricultural Income Tax Officer, on September 23, 1987, showing the list of cases for which certificate u/s 41 of the Agricultural Income Tax Act

was required by the District Revenue Officer, Tiruchirapalli. In this case it is not clear whether the District Revenue Officer had the delegation of

powers of the Collector. In such a case it cannot be said that the District Revenue Officer is an appropriate authority to take action u/s 41 of the

Act. In view of the above provisions, as there is violation of Section 41 of the Act, the impugned order is quashed. But, however, liberty is given to

the respondent to proceed afresh, after complying with the provisions of the Act of 1955, within a period of four months from the date of receipt of

this order copy.

With the above observation, the writ petition is allowed. The petitioner is directed to deposit the amount of Rs. 2,00,000 to the credit of the

respondents. But, however, the respondents should not withdraw the amount, pending disposal of the final orders as directed above, within a

period of two months. If the respondent comes to the conclusion that the petitioner is not liable to pay the tax amount of Rs. 2,00,000 the amount

must be refunded to the petitioner forthwith.