V. Selvapandian vs Agricultural Income Tax and Sales Tax Officer and Another

M.M. Pareed Pillay, C.J.—The assessments for the years 1984-85, 1985-86, 1986-87 and 1987-88 were completed by the first respondent u/s 18(4) of the Agricultural Income Tax Act, 1950, by separate orders. Admittedly, that was done with a notice to the petitioner. The petitioner filed applications u/s 19 of the Act to reopen the assessments. As the applications were not filed within one month from the service of a notice of demand, the Agricultural Income Tax and Sales Tax Officer (the first respondent) rejected the same. Appeals were preferred against the assessment orders before the Appellate Assistant Commissioner. The appeals were dismissed. Second appeals were filed before the Agricultural Income Tax Appellate Tribunal (the second respondent). The Tribunal allowed the appeals as per exhibit P-2 order. Thereafter, the Tribunal suo motu rectified the order u/s 36 of the Act. Exhibit P-3 is the order. Exhibit P-3 is challenged in the original petition.

Admittedly, the petitioner was served with notice in the assessment proceedings initiated against him. u/s 19 of the Act, he ought to have filed the applications within one month from the service of the notice of demand of tax as per the assessments made against him. Admittedly, the applications u/s 19 were filed belatedly.

The question that arises for consideration is whether Section 5 of the Limitation Act can be invoked in a petition filed u/s 19 of the Agricultural Income Tax Act. Section 19 provides that where an assessee, within one month from the service of a notice of demand, satisfies the Agricultural Income Tax Officer that he was prevented by sufficient cause from making the return required by Section 17 or that he did not receive the notice issued under Sub-section (2) or Sub-section (4) of that Section or Sub-section (2) of Section 18or that he had not a reasonable opportunity to comply, or was prevented by sufficient cause from complying, with the terms of any such notice, the Agricultural Income Tax Officer shall cancel the assessment and proceed to make a fresh assessment in accordance with the provisions of Section 18. Thus, from a reading of Section 19, it can be seen that the time given to an aggrieved person is only one month to prefer an application under that section. In a case where an appeal is filed against an assessment u/s 31, the statute enables the assessee to get the delay in filing the appeal condoned, if he established that he had sufficient cause for not presenting the appeal within the period, viz., 30 days. Section 31(3) makes the position clear. So also, when an appeal is filed by an assessee against the order of the Assistant Commissioner, he can get the delay condoned as provided u/s 32(3). u/s 36, the period for rectification of mistakes is three years.

As the Act is a self-contained one and as Section 5 of the Limitation Act is not made applicable and as the Agricultural Income Tax Officer is not bestowed with the power to condone delay, the petition filed u/s 19 beyond time cannot be entertained by him. In other words, the assessee has no option but to file the petition within the statutory period. As already noted, with regard to the appeals before the Assistant Commissioner and the Tribunal, Sections 31(3) and 32(3) empower the concerned authorities to condone the delay in preferring the appeal if they are satisfied that the assessee had sufficient cause for not presenting the appeal within the period mentioned in the sections. So far as Section 19 is concerned, no power is conferred on the assessing authority to condone any period of delay. That apart, Section 5 of the Limitation Act cannot be relied on for extension of time in respect of the proceeding before the Agricultural Income Tax Officer.

Exhibit P-3 order cannot be assailed as that has been passed u/s 36 of the Act. Section 36(1) provides that the authority which passed an order on appeal or revision may, at any time within three years from the date of such order passed by him on appeal or in revision, and the Agricultural Income Tax Officer may at any time within three years from the date of any assessment or refund order passed by him of his own motion, rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee. The Tribunal u/s 36 of the Act, having found the fact that the delay in filing the petition u/s 19 cannot be condoned, rectified its earlier order. The Tribunal in the first instance allowed the appeals as per exhibit P-2 order holding that Section 5 of the Limitation Act applies. Having realised the correct legal position, exhibit P-3 order was passed.

We see no reason to quash exhibit P-3 order. The original petition is dismissed.