Tahsildar vs Thomas Joseph

Gopalan Nambiyar, C.J.—The learned Advocate General has canvassed in this appeal the correctness of the view of the learned Judge that Rule 10(a) of the Kerala Plantation (Additional) Tax Revision of Assessment Rules, 1965 is ultra vires as going beyond the purview of Section 9(1) of the Act and the proviso thereto. We may quote those two provisions.

Section 9.(1): Any Assessee objecting to the extent of plantation or the amount of plantation tax assessed u/s 5 or Section 6A or denying his liability to be assessed under this Act or objection to any order of the assessing authority under this Act may appeal to the appellate authority against the assessment or against such order;

Provided that no appeal shall lie in respect of an assessment made under Sub-section (4) of Section 5 or u/s 6.

Rule 10(a): An appeal against the decision or orders of an assessing authority shall lie to the appellate authority appointed by the Government by notification issued under Sub-section (2) of Section 2 of the Act:

Provided however that no appeal shall lie against an assessment order passed under Sub-rule 5(a).

In accordance with the well-settled principle that a right of appeal to a party is an important substantive right and that no limitations on the exercise of the said right are to be looked into or recognised other than what are provided either expressly or by necessary implication, we shall proceed to scrutinise the provisions of Section 9. That section clearly confers a right of appeal to an Assessee objecting to the extent of plantation or the amount of tax assessed u/s 6 or Section 6A; secondly, to one denying his liability to pay tax under the Act; and thirdly to one objecting to any order of the assessing authority under the Act, The right of appeal is thus conferred in very wide amplitude. The only restriction placed on the exercise of that right by the proviso is that no appeal lies in respect of an assessment made under Sub-section (4) of Section 5 or Section 6. We may turn to these sections to see if they are attracted or not. Section 5(4) reads:

5, (4) If any person fails to make a return under Sub-section (3) of Section 4, or fails to comply with all the terms of a notice issued under Sub-section (5) of that section or under Sub-section (2) of this section, the assessing authority shall determine the extent of plantation to the best of his judgment and assess the plantation tax payable by the Assessee on the basis of extent of the plantation so determined.

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(Section 6 is not quoted as it deals with provisional assessment).

We then proceed to examine whether the assessment was for any of the causes mentioned in these provisions. There was no failure to make a return under Sub-section (3) of Section 4, to attract Section 5. That Sub-section contemplates the service of notice on a person who holds an extent of plantation sufficient to render him liable to plantation tax, requiring him to furnish a return. Sub-section (5) of Section 4 deals with a notice to produce documents and failure to produce the same. Lastly Sub-section (2) of Section 5 refers to a notice to attend the office in person or cause to produce evidence in support of the return. It is plain that none of those contingencies mentioned in Sub-section (4) of Section 5 have application to the case on hand. So that a right of appeal cannot be excluded by the application of Sub-section (4) of Section 5.

Section 6 deals with provisional assessment. That is not attracted, and therefore the exclusion of a right of appeal on that ground cannot be sought or found. It is therefore clear that on the terms of the section a right of appeal cannot be excluded in this case.

Appeal was sought to be excluded by reference to Rule 10(a) which we have extracted supra. The proviso to that rule bars a right of appeal under Sub-rule (a) of Rule 5, which reads thus:

(a). If the Assessee files no objections or produces no evidence in response to the notice under Rule 4 within the time specified in the notice, the assessing authority shall straightaway assess the party to Plantation Tax on the basis of the revised extent.

It is obvious that the exclusion of the right of appeal by the rule travels further than the" proviso to Section 9(1). The argument of the learned Advocate General is that an assessment made under Sub-rule (a) of Rule 5 would be attracted by the provisions of Section 5, Sub-section (4) of the Act, an order under which is excluded from the right of appeal by reason of the proviso to Section 9. To make good his submission, the learned Advocate General took us through a series of sections, viz., Sections 3, 4 and 5. We do not think it necessary to extract these sections. But we are satisfied that nothing contained in these sections can help to bring the order in question with which we are concerned, under the provisions of Sub-section (4) of Section 5 of the Act, so as to be excluded from the scope a right of appeal conferred by Section 9. The learned Advocate General referred to Section 27(2)(c) of the Act, which is as follows:

27(2). In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

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(c) the procedure for revising the extent of plantations held by a person and provision for appeals from orders in such revision;

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It was argued that the power of making rules would extend to laying down the procedure for recognition of extent of plantation and for providing for appeals from orders in such revision. This, it was said, would justify Rule 5(a) of the Rules. But, even then, if there is a conflict between Section 9 of the Act and the proviso to Rule 10(a) of the Rules, the rule must yield to the section. In this view, we affirm the judgment of the learned Judge and dismiss the appeal with no order as to costs.