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Judgment
C.S. Nayudu, J.—The Petitioner No. 1 in these civil rules is the Abhoyjan Tea Company (Private) Limited, a company incorporated under the Indian Companies Act in the year 1928 and the Petitioners Nos. 2 to 4 are the shareholders and the directors of the said company They own the Tea Estate bearing the name and style of "Abhoyjan Tea Company (Private) Limited" and grow tea on the said estate and carry on the tea industry. The Petitioners claim that although they are entitled to he served with a notice u/s 19(2) of the Assam Agricultural Income Tax Act, 1939, hereinafter referred to as the Act, no such notice had been served on them to furnish returns in respect of the assessment years 1956-57, 1957-58 and 1958-59. The assessments to the agricultural Income Tax made for these years are respectively questioned in Civil Rules Nos. 1, 2 and 3 of 1964. The Petitioners also pointed out that they had not been served with any notice requiring them to produce the books of accounts for the above said assessment years and that without intimation to the Petitioners and without following the procedure envisaged in the provisions of the Act and the Rules framed thereunder.
The 1st Respondent, namely, the Agricultural Income Tax Officer, Shillong, issued notices of demand in each case dated 28-5-1962 u/s 23 of the Act calling upon the 1st Petitioner-company to pay a sum of Rs. 53,111/- for the assessment year 1956-57, Rs. 72,884-38 Np. for the assessment year 1957-58 and Rs. 45,493-98 Np. for the assessment year 1958-59 as agricultural Income Tax respectively payable during the said assessment years. On receipt of the said demand notices dated 28-5-1962, the Petitioners obtained the certified copies of the assessment orders dated 24-5-1962 and filed applications for setting aside the orders of assessment which were rejected on 30-8-1963. Applications for revising such orders were also rejected on 26-6-1963.
Subsequently, the Petitioners were served with notices to show cause why a penalty of Rs. 20,000/- for the assessment year 1956-57 and a penalty of Rs. 40,000/- for the years 1957-58 and a penalty of Us. 18.000/- in respect of the assessment year 1958-59 should not be imposed for the default committed by them in making payment of the agricultural Income Tax payable for the laid assessment years On this, the Petitioners presented these Petitions under Article 226 of the Constitution, claiming that the orders of the Agricultural Income Tax Officer. Shillong, dated 30-3-1963 and 26-6-1963 in each of the cases are illegal and ultra vires and to quash the same, and the Petitioners accordingly prayed for the issue of a rule in regard thereto and for appropriate writs of certiorari or the like nature. quashing these assessment orders.
It is contended for the Opposite Parties, namely, the Agricultural Income Tax Officer, Shillong and the State of Assam, that notices u/s 19(2) of the Act calling for returns of the agricultural income for the assessments in question were issued to the Petitioners by registered post and reliance was placed in support thereof to the relevant entries in the despatch register maintained for the purpose. They also pointed out that a number of reminders were also issued in regard to the said notices and it was in response to the fourth reminder dated 17-3-1959 that the Petitioners filed an application dated 20-3-1959 claiming that they had made an application for the copies of the Central Assessment Order but that the copies had not yet been received, that they had submitted fresh applications that day, namely, 20-3-1959 for the copies and will be forwarded as soon as they are received by them.
It was further claimed on behalf of the Respondents that the notice u/s 19(1) of the Act was duly published in the Assam Gazelle dated 25-4-1956 as well as in the local Press, a copy of which notice is attached to the counter-affidavit and filed as Annexure ''D'' and that in response to that notice, every person having agricultural income exceeding the taxable limit is required to make a return within sixty days of the publication of the said notice and that as the Petitioners had not filed their returns in response to the notice u/s 19(1), the Agricultural Income-lax Officer was justified in, taking action u/s 20(4) of the Act and making an order of assessment under that provision. The Respondents further pointed out that it was not necessary that a notice u/s 19(2) should, in fact, be served for taking action u/s 20(4) of the Act, but that the fact that the general notice u/s 19(1) was issued is sufficient to justify making of the assessment u/s 20(4) of the Act.
It is further pointed out that it is not necessary in the matter of agricultural Income Tax assessment to call for the books of account of the Petitioner-company inasmuch as agricultural Income Tax is assessed and payable by the Petitioner-company on the basis of the assessment made by the Central Income Tax Authorities as laid down under the second proviso to Section 8(2) of the Act read with Rule 5 of the Assam Agricultural Income Tax Rides, 1939. It is further pointed out that the assessment made u/s 20(4) of the Act was merely based on the total agricultural income as computed under the Indian Income Tax Act and that no exception could be taken to the correctness of the figures forming the basis of the assessment. The Respondents claim that the rules should be discharged and the petitions dismissed.
The simple point that arises for decision in these civil rules, therefore, is whether before an assessment could be made u/s 20(4) of the Act it was necessary, as a condition precedent, that a notice u/s 19(2) of the Act should have been served on the Assessee-Petitioners.
Before we deal with the question, it is useful to refer to the provisions of the Act as well as the Rules. Section 19(1) provides for the giving of a [general notice by the Agricultural Income Tax Officer by publication in the press and otherwise in the manner prescribed by Rules, requiring every person liable to pay agricultural Income Tax to furnish his return in the prescribed form of the total agricultural income during the previous year. This sub-section is as follows:
19(1) The Agricultural Income Tax Officer shall, on or before the first day of May or for the year commencing 1st April, 1939 any later day notified by Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every person whose agricultural income exceeds the limits of taxable income prescribed in Section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year:
Provided that the Agricultural Income Tax Officer may in his discretion extend the dale for the delivery of the return in the case of, any person or class of persons;
Section 19(2) provides for the service of a notice in the prescribed form requiring any person who is liable to assessment under the Act to furnish a return in the prescribed form and within the prescribed period and verified in the prescribed manner giving particulars of his total agricultural income during the previous year. This section is as follows:
(2) In the case of any person whose total agricultural income is in the opinion of the Agricultural Income Tax Officer. of such amount as to render such person liable to payment of agricultural Income Tax for any financial year the Agricultural Income Tax Officer, may serve in that financial year, a notice in the prescribed form upon him re quirking him to furnish, within the prescribed period, a return in the prescribed form and verified in the prescribed manner setting forth his total agricultural income during the previous year.
Section 20 deals with the assessment. Sub-sections (1) and (4) are relevant and are extracted below;
20 (1) If the Agricultural Income Tax Officer is satisfied that a return made u/s 19 is correct and complete he shall assess the total agricultural income of the Assessee, and shall determine the sum payable by him on the basis of such return.
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(4) If the principal officer of any company or other person fails to make a return under Sub-section (1) or, Sub-section (2) of Section 19, as the case may be or, having made the return, fails to comply with all the terms of the notice issued under Sub-section (2) of this section, or to produce any evidence required under Sub-section (3) of this section, the Agricultural Income Tax Officer shall make the assessment to the best of his judgment, and determine the sum payable by the Assessee on the basis of such assessment:
Provided that before making such assessment the Agricultural Income Tax Officer may allow the Assessee such further time as he thinks fit to make the return or comply with the terms of the notice or to produce the evidence.
It may be seen from the above section that if the Agricultural Income Tax Officer is satisfied that the return made u/s 19 is correct and complete, he shall proceed to assess the total agricultural income of the Assessee and determine the sum payable by him on the basis of such return. Sub-section (4) provides for the Agricultural Income tax Officer making the assessment to the best of his judgment and determining the sum pay able by the Assessee on the basis of such assessment in cases where the person concern ed fails to make a return either under Sub-section (1) or Sub-section (2) of Section 19 of where he having made a return, fails to com ply with all the terms of the notice issued under Sub-section (2) or to produce evidence required by Sub-section (3), with which how ever. We are not concerned in this case.
The proviso to Section 8 of the Act lays down that in cases of agricultural income derived from the cultivation and manufacture of tea, the said income shall be deemed to be that portion of the income thus derived which is agricultural income within the meaning of the Indian Income Tax Act and shall be ascertain ed by computing the income so derived following the same method of computation done under the Indian Income Tax Act. This proviso is as follows:
Provided further that in cases of agricultural income from cultivation and manufacture of lea the agricultural income for the purposes of this Act shall be deemed to be that portion of the income from cultivation, manufacture and sale which is agricultural income within the meaning of the Indian Income Tax Act and shall be ascertained by computing the income from the cultivation, manufacture and sale of tea as computed for Indian Income Tax from which shall be deducted any allowances by this Act authorised in so far as the same shall not have been allowed in the compilation for the Indian Income Tax Act.
Section 50 of the Act gives power to the State Government to make rules for carrying out the purposes of the Act and in particular these rules may inter alia prescribe the manner in which the net income from land referred to in Sub-section (1) of Section 8 shall be calculated and prescribe the date and its term before which the return under Sub-section (1) of Section 19 of the Act is to be submitted.
To summarise the relevant provisions the following conclusions can be safely drawn.:
(1) That the agricultural income assess-able to agricultural Income Tax under the Act is the same as the agricultural income, which is computed for the purpose of making an assessment under the Indian Income Tax Act;
(2) Of this income, forty per cent is assess able under the Indian Income Tax Act and sixty per cent under the Act;
(3) Once a general notice u/s 19 (1) was issued by a due publication in the Gazette and in the press, every person who is in receipt of income assessable to agricultural Income Tax is bound to submit a return of his income;
(4) A notice u/s 19(2) with reference to a particular person could be served where the Agricultural Income-lax Officer chooses to do so; and
(5) Where a general notice u/s 19(1) or a notice u/s 19(2) has been issued, and no return is submitted in response to either the one or the other of the notices, it would be open to the Agricultural Income Tax Officer to make the assessment u/s 20(4) to the best of his judgment and determine the sum payable by the Assessee on the basis of such assessment.
It is, however, contended on. behalf of the Petitioners by Mr. Lahiri that a general notice u/s 19(1) does not entille the Agricultural Income Tax Officer to make an assessment u/s 20(4), but that a notice u/s 19(2) should also be shown to has been served on the Assessee, that in the instant case as no proof of service of such notice has been produced, it must be held that there has been no such service and this being the ease, any assessment u/s 20(4) is incompetent and devoid of jurisdiction. He claims that if notices had been served u/s 19(2), the Respondents could have produced the postal acknowledgment or the postal receipt showing the issue of notices and the service thereof and as these were not produced, it must be held that there was no proof of service of the notices, which is essential u/s 20(4) of the Act.
In this connection he placed reliance on the decision reported in Hardeodas Jagannath Vs. Income Tax Officer, Shillong, and Others, for the proposition that when there is a categorical denial by the Assessee of the fact of the receipt of the notice, the burden is on the department to show that the notice had in fact been served on the Assessee in accordance with the provisions of the Indian Income Tax Act. That case was one under the Indian Income Tax Act and not under the Act in question. Further, the learned Judges in that Case appear to be dealing with a case of service of summons by a peon. That was not a case of postal service at all, and the observations made therein and relied on by the learned Counsel for the Petitioners were based on the peculiar facts of the case wherein no attempt had been made to file an affidavit by the peon who was said to have effected the service, nor of the person who received the notice that he was duly authorised to do so. In our opinion, this decision has no application to the instant case.
In our opinion, the question whethere a notice u/s 19(2) had actually been served or not, becomes more or less academic in this case inasmuch as the issue of the general notice and its due publication u/s 19(1) had not been disputed. Further the question of service of notice is a question of fact, which, this Court in the exercise of its extraordinary jurisdiction, would not ordinarily investigate. But, that apart, the Respondents have produced their official records to show the issue of these notices by registered post, and u/s 114 of the Indian Evidence Act. the presumption that a letter posted must have reached its destination may be drawn in the absence of proof that the same had been returned through the dead letter office, and this pre sumption receives further reinforcement by reason of the presumption that all official acts have been duly and properly performed.
Further, it may be seen that the Petitioners responded to one of the reminders and made a representation to the 1st Respondent praying for further time to produce the Central Assessment Order for which they had applied for copies (Vide Annexure ''A'' to the Counter affidavit). In that representation, no mention was made that they had not been served with a notice u/s 19(2). Added to this is the circumstance that an order was made by the Agricultural Income Tax Officer on 26th June 1963, to which the Petitioners were parties, wherein it was mentioned by the 1st Respondent that notice u/s 19(1) was published and notices u/s 19(2) had been served on the Petitioners. This order had not been seriously questioned in any appropriate proceedings. Hence, we experience no difficulty, whatsoever, in coming to the conclusion that in the instant case the notice u/s 19(1) had been published and that the service of notices u/s 19(2) of the Act could be safely presumed. This being the case no exception could be taken to the action of the 1st Respondent in making an assessment u/s 20(4) of the Act.
Even on the footing that only Section 19(1) notice has been published and that it is not established that the notice u/s 19(2) had been served on the Petitioners, nevertheless, the assessment u/s 20(4) of the Act is competent, having regard to the plain language of the section, which leaves no manner of doubt whatsoever, as already pointed out.
Another argument, which Mr. Lahiri placed reliance on, is that where no return has been made u/s 19 for any financial year and consequently no assessment is made such an assessment must be regarded as ''escaped assessment'' and could only be made thereafter u/s 30 of the Act and any such assessment would be controlled by the period of limitation indicated in the section. In order to consider this question, it would be necessary to refer to Section 30 of the Act, which reads as follows:
If for any reason any agricultural in-come chargeable to agricultural Income Tax has escaped assessment for any financial year, or has been assessed at too low a rate or has been the subject of undue relief under this Act, the Agricultural Income Tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural Income Tax on such agricultural income or, in the case of a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under Sub-section (2) of Section 19, and may proceed to assess or reassess such income, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section:
In the view we have taken, it is unnecessary to examine this question in detail, but it may be pointed out that the expression "escaped assessment" has a technical meaning under the Act as it is under the Income-lax Act as well. Ordinarily, there should have been an assessment of the income to tax and in doing so some portion of the income, which should have been taxed, does not come to be taxed for various reasons, such as, defective slate of accounts, defective return, mistakes in assessment etc. It is only to such cases and that part of the income which ought to have been levied to lax, but which had not been done, as indicated above, that the provisions u/s 30 of the Act as well as the corresponding provisions of the Indian Income Tax Act would come into operation. This conclusion is borne out by the language employed by the section itself. Here, we are not concerned with any case of '' escaped assessment '' and, therefore, it is unnecessary to examine further the scope and applicability of Section 30 to the facts of the instant case.
In Sir Rajendra Nath Mukerjee v. Commr. of Income Tax, (1934) 61 Ind App 10, AIR 1934 PC 30 it is laid down that so long as proceedings for the assessment of an Assessee''s income for a financial year are pending, no final assessment having been made upon him, his income has not "escaped assessment" within the meaning of Section 34 of the Indian Income Tax Act, 1922 so as to require the service of a notice provided by that section as a condition of assessment under it. Section 30 of the present Act corresponds to Section 34 of the Indian Income Tax Act. The Judicial Committee in that case has further held that where a case did not fall within Section 34 of the Indian Income Tax Act, an assessment can be made at any time u/s 23(1) pursuant to a notice u/s 22(2) calling for a return, under that Act.
Another argument of Mr. Lahiri is sought to be based on the assumption that assessment proceedings commence only on the issue of a notice u/s 19(2) of the Act and not from the time the notice u/s 19(1) of the Act has been published In C. Vs. GOVINDARAJULU IYER v. COMMISSIONER OF Income Tax, MADRAS., which was a case under the Indian Income Tax Act, the notice u/s 22(1) of the Indian Income Tax Act which corresponds to the notice u/s 19(1) of the present Act was recognised as the point of time from where assessment proceedings must be deemed to have commenced. That decision is an authority, therefore, for the position that the assessment proceedings commence with the issue of the general notice u/s 22(1) and can only come, to an end either by an order of assessment or an order declaring that no assessment could be made. We are in entire agreement with the conclusions reached in that decisions by the learned Judges of the Madras High Court.
In this context, reference may usefully be made to the decision reported in The Commissioner of Income Tax, Bombay Vs. Ranchhoddas Karsondas, Bombay, wherein it was held that a return in answer to a general notice u/s 22(1) of the Indian Income Tax Act could be filed and for this there was no limit of time, which in our opinion, presupposes that assessment proceedings do commence from the date the general notice is issued u/s 22(1) of the Indian Income Tax Act and correspondingly u/s 19(1) of the present Act.
In our considered view, the moment the general notice u/s 19(1) of the Act had been published and subsequently an assessment is made in pursuance thereof, the assessment proceedings must be deemed to have been commenced with the publication of the general notice and, therefore, must be deemed to be pending until the ''assessment order is made. In that view also, as the assessment proceedings must be deemed, to be pending dining this period, there can be no scope for the application of Section 30. of the Act, as the stage has not been reached when there could have been any escapement of assessment In any view of the matter, therefore, we are clearly of opinion that Section 30 of the Act has no application to the instant case and that the order of assessment passed u/s 20(4) of the Act cannot be assailed and has necessarily to be given effect to. It may be pointed out that even what purports to be the best judgment assessment u/s 20(4), is only based on the income figures as computed under the Indian Income Tax Act and the Petitioners could not have any cause for complaint,
In the result, these petitions fail and are dismissed with costs of one set. Advocate''s Fee : Rs. 100.
S.K. Dutta, J.
I have had the opportunity of going through the judgment of my learned brother Nayudu, J. and I agree with his conclusion that these petitions must be dismissed. But I give my own reasons.
The assessments in question have been made u/s 20(4) of the Assam Agricultural Income Tax Act 1939 and are known as "best judgment assessments" It is not disputed, that assessment under this section can be made if an individual notice culling for return is served u/s 19(2) of the said Act and no return is filed. II is also not disputed that in the present case no return was filed. The case of the opposite party is that the notice u/s 19(2) was duly served on the Petitioner and even several reminders were sent. The relevant entries from the issue register have been quoted in the counter-affidavit. The order-sheet of the Agricultural Income Tax Officer has also been submitted to show that the notice u/s 19(2) was issued. Thus a prima facie case that the said notice was issued having been established, two presumptions can he made u/s 114 of the Indian Evidence Act viz., that the notice was posted in common course of public business and that it was delivered to the Petitioner in common course of postal service. Of course these presumptions can be rebutted by production of adequate evidence and explanations by the Petitioner. If the Petitioner is allowed to do this, this Court will have to undertake an elaborate investigation into facts which cannot be done on a writ petition. The Petitioner may seek his remedy in the proper forum, if so advised.