Sylvester P. Netto vs Board of Revenue (L.R.)

T.L. Viswanatha Iyer, J.—I do not think Ext. P-1 is sustainable u/s 6 of the Plantation Tax Act, 1960. The Petitioner had a case that the original estate having an extent of 130 acres had been partitioned between six people and he had only a 1/6th share. He had intimated the assessing authority accordingly on 10th July 1980. But what the assessing authority did was to overrule this plea and proceed to make a provisional assessment on the Petitioner for the years 1977-78 onwards and make demand of the plantation tax due as per the provisional assessment. This was done as per the order Ext. P-1 dated 28th November 1990. The Petitioner''s appeal there from before the Collector and the subsequent revision to the Board of Revenue stood defeated as not maintainable in view of the proviso to Section 9(1) of the Act.

The question for consideration at this stage is whether the order of provisional assessment Ext. P-1 is valid in law. I am some what surprised that a provisional assessment should be made twelve years after the year of assessment was over. The assessing authority should have proceeded to complete the final assessment itself after following the procedure prescribed under the Act, instead of resorting to a provisional assessment at this belated stage depriving the Assessee of the right of appeal provided by Section 9(1). Apart from this question, the provisional assessment Ext. P-1 is itself not warranted by Section 6 of the Act. What Section 6 provides is that the assessing authority may at any time after the receipt of a return under Sub-section (1) or Sub-section (2) or Sub-section (3) of Section 4, proceed to make in a summery manner a provisional assessment of the plantation tax payable by the Assessee on the basis of the return and the documents, if any, accompanying it. Evidently what is contemplated by Section 6 is only an assessment which is in accord with the return that is, to the extent of any liability for tax admitted in the return or is evident from it and the documents accompanying it. The section does not contemplate an assessment contrary to the return or de hors it, in which case the procedure prescribed by Section 5 has to be followed. Section 6 postulates only a summary assessment, which provides for payment forthwith of whatever amount is due from the Assessee on the basis of the return or the documents accompanying it. A detailed enquiry and a rejection of the return is not contemplated at the stage of provisional assessment. The section is intended to facilitate collection of amount of tax which is due as per the return or as disclosed by it and the documents accompanying it, without waiting for the final assessment. The scope of Section 6 is limited to this extent and no more. This is the reason why even an appeal is not provided against the provisional assessment u/s 6, such an appeal being barred by the proviso to Sub-section (1) of Section 9.

The definite stand of the Petitioner was that the property had been partitioned and that he was in possession of only a portion of the original extent of 130 acres. The assessing authority overruled the plea of partition by the proceedings Ext. P-1 for his own reasons and as stated earlier, made a provisional assessment. This assessment Ext. P-l is not sustainable u/s 6 of the Act. it is therefore quashed. The third Respondent will however be entitled to make final assessments u/s 5 for the years in question, if such final assessments have not already been completed.

The Original Petition is disposed of as above.