P.A. Mohammed, J.
1. These income-tax reference cases under Section 60(3) of the Kerala Agricultural Income-tax Act, 1950 (hereinafter referred to as 'the Act'), are coming up for decision before us at the instance of the assessee. The assessment years involved in these cases are 1976-77, 1977-78, 1978-79, 1979-80, 1980-81 and 1985-86.
2. The petitioner, R. S. Parameswaran, Chekkini Rubber Estate, Alathur, is an assessee on the file of the Agricultural Income-tax Officer, Alathur. Income-tax reference case number, assessment year, date of assessment and date of appellate order are tabulated hereunder :
Income-tax Ref. case
Assessmentyear
Date of assessment
Date of appellate order
ITR137 of 1994
1976-77
07-06-1978
28-06-1983
ITR138 of 1994
1977-78
23-03-1981
14-01-1982
ITR139 of 1994
1978-79
25-03-1984
14-01-1982
ITR140 of 1994
1979-80
23-03-1981
14-01-1982
ITR141 of 1994
1980-81
04-12-1981
31-05-1982
ITR142 of 1994
1985-86
05-11-1985
05-08-1986
3. The Agricultural Income-tax Officer passed assessment orders for the aforesaid years assigning the status as 'individual'. As against those orders, the assessee filed appeals before the Appellate Assistant Commissioner. Those appeals were disposed of by the Appellate Assistant Commissioner on the dates mentioned above assigning the status as 'Hindu undivided family/tenants-in-common'. The Deputy Commissioner, however, initiated proceedings under Section 34 of the Act on March 15, 1989, to revise the order of the Appellate Assistant Commissioner for the aforesaid assessment years suo motu. The Deputy Commissioner after the inquiry by common order dated March 20, 1989, set aside the assessments and remanded the cases to the assessing authority for fresh disposal. Subsequently, on April 26, 1990, the assessee filed applications requesting to refer to this court certain questions of law as authorised under Section 60(2) of the Act. However, the Deputy Commissioner disallowed the request against which the assessee filed applications before this court for compelling the Commissioner to refer the question. This court by judgment in O. P. No. 9018 of 1990 dated July 19, 1994, directed the Deputy Commissioner to refer the following question for decision by this court :
'Whether, on the facts and in the circumstances of the case, the power of revision under Section 54 of the Agricultural Income-tax Act, 1950, was validly exercised ?'
4. Pursuant to the direction of this court the Deputy Commissioner has referred the above question to this court for decision. Though three other questions are also referred by the Deputy Commissioner, this court is only concerned with the question of law directed to be referred by this court which is found to be the only relevant question.
5. Counsel for the assessee submitted that the Deputy Commissioner while passing annexure-C order failed to obey the principles laid down by the Division Benches of this court in Anantha Mallan v. Commr. of Agrl. I. T. : [1963]47ITR93(Ker) and George Oommen v. Commr. of Agrl. I. T. : [1964]52ITR977(Ker) . Counsel further pointed out that the power under Section 34 of the Act has not been validly invoked. The orders passed by the Deputy Commissioner under Section 34 for the aforesaid years were correctly set aside and the cases were remanded to the assessing authority for fresh disposal. By annexure-C order, the Deputy Commissioner observed that the scrutiny of the records would show that the appellate authority erred in altering the status from 'individual' to 'Hindu undivided family/tenants-in-common'. Though the aforesaid two decisions were cited before the Commissioner by the assessee, the Commissioner did not place reliance on them, he added. It is also pointed out that the Deputy Commissioner is not a specified authority under Section 15 of the Act and hence he is not competent to initiate proceedings under Section 34(1) of the Act.
6. In this context it would be appropriate to examine the provisions contained in Section 34 of the Act. Section 34(1) authorises the Commissioner, of his own motion or on application by the assessee, to call for the record of any proceeding under the Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and may pass such orders thereon as he thinks fit subject to the provisions of the Act The Commissioner can invoke this power at any time inasmuch as no time limit has been prescribed for exercising the power under Section 34(1). The only condition prescribed in Section 34(1) is that the Commissioner shall not pass any order prejudicial to the assessee without hearing him or giving him a reasonable opportunity of being heard. The above provision came up for interpretation before this court in various decisions. In Anantha Mallan's case : [1963]47ITR93(Ker) , the provisions contained in Section 34 came up for interpretation. The Division Bench after analysing the relevant provisions observed as follows (page 98) :
'It follows that, because the Commissioner in both the cases had objections to the Appellate Assistant Commissioner's assessments, he ought to have followed the procedure indicated in Section 32(2) and not exercised his revisory powers. To decide your own objections to assessment orders is violative of the principles of natural justice, that persons with biased mind must not adjudicate, which principle is not excluded by the statutory provisions in the Act.'
7. Section 32(2) upon which reliance was placed by the above Division Bench is as follows (page 96) :
'32. (2) The Commissioner may, if he objects to any order, passed by an Assistant Commissioner under Section 31, direct the Agricultural Income-tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Assistant Commissioner.'
8. This is a provision available to the Deputy Commissioner for exercise if he is aggrieved by the order passed by the Appellate Assistant Commissioner, he can very well direct the officer to take steps to file an appeal before the Appellate Tribunal. Admittedly, no such direction has been issued. But the Deputy Commissioner in the present case issued notice proposing to initiate action under Section 34. In other words, the principle laid down by the Division Bench of this court in Anantha Mailan's case : [1963]47ITR93(Ker) , has been violated by the Commissioner in this case.
9. An attempt was made for reconsideration of the above decision in a subsequent Division Bench decision in George Oommen v. Commr. of Agrl. I. T. : [1964]52ITR977(Ker) . In a separate judgment, on the question of reconsideration of the decision in Anantha Mallan's case : [1963]47ITR93(Ker) , Madhavan Nair J. observed (Page 980) :
'I do not feel persuaded to differ from the above ruling. As exception to the assessment made by the Assistant Commissioner was taken by the Commissioner himself he ought not to have sat in judgment on it, relying on his general revisional jurisdiction under Section 34, but ought to have followed the particular procedure indicated in Section 32(2) to have the matter adjudged by the Appellate Tribunal. When two courses of action are indicated for a particular occasion by the statute, of which one is general and the other particular, the latter ought to be followed, especially when that alone is consistent with the principles of natural justice.'
10. On the same question, Velu Pillai J. observed (page 986) :
'In I. T. R. No. 8 of 1961 no adequate ground has been made out to refer the case to a Full Bench for reconsideration of Anantha Mallan v. Commr. of Agrl I. T. : [1963]47ITR93(Ker) .'
11. In this context it is necessary to delineate the power under Section 34 of the Act. The Commissioner by invoking the powers under Section 34 can revise the orders passed by an authority subordinate to him on his own motion. In this case the authority subordinate to him is the Appellate Assistant Commissioner who in the course of his order stated : 'The correct status to be assigned to the assessee is undivided Hindu family/ tenants-in-common'. What the Commissioner proposed to do by invoking Section 34 was to assign the status as 'individual' so that the tax burden on the part of the assessee would be high. The power conferred under Section 34 is extraordinary because the Commissioner is authorised to revise the orders of the subordinate authority without following any period of limitation whatsoever. When such a power is conferred it has to be exercised with extreme care and caution and it involves implied restrictions. One of such restrictions has been stated by the Division Bench of this court in Dr. Thomas Varghese v. State of Kerala : [1997]226ITR365(Ker) , namely, the authority exercising power suo motu affecting the interest of the parties is bound to show cause for such delay. The court further observed (headnote) :
'When completed assessments are reopened after a lapse of many years by invoking the suo motu power of revision, serious prejudice would be caused to the assessee. The result in such circumstances would be to unsettle matters which are already settled. Therefore, it is the inherent duty of the Deputy Commissioner to state the circumstances leading to the delay in initiating the action under Section 34.'
12. In the present case two powers are available to the Commissioner, one under Section 34 and the other under Section 32(2) of the Act. Under Section 32(2) if the Commissioner objects to any order passed by the Assistant Commissioner, he can direct the Agricultural Income-tax Officer to appeal to the Appellate Tribunal against such order. That is one of the powers available to the Commissioner. On the other hand, under Section 34(1) the Commissioner himself can invoke the revisional power initiating suo motu action. When such two powers are conferred on the same authority against an order passed by a subordinate officer, the question is which of the powers is to be exercised in a given situation. The power conferred under Section 32(2) is of course an inferior power when compared to the power under Section 34(1). When the assessee is having a concluded, verdict in his favour from the Appellate Assistant Commissioner that he should be assessed as tenants-in-common and not as individual, such a verdict is sought to be disturbed by the Commissioner. In such situation the principles of justice, equity and good conscience demand that the Commissioner shall not deny the opportunity of examining the case of the assessee by a superior forum like the Appellate Tribunal. The Commissioner ought not to have resorted to the power under Section 34(1) taking the burden by himself and reopened the entire matter. If such power is exercised for the reason that the time for filing the appeal has expired then the Commissioner shall explain the causes for delay in the notice proposing action under Section 34(1). The Division Bench in Anantha Mallan's case : [1963]47ITR93(Ker) , put the whole question on the violation of principles of natural justice. The Division Bench consisting of Chief Justice M. A. Ansari and Justice P. Govinda Menon observed that if the Commissioner feels aggrieved by an order made by the Appellate Assistant Commissioner the proper procedure to be adopted by him is to direct the Income-tax Officer to file an appeal before the Appellate Tribunal. The court further said that it would not be proper for the Commissioner to exercise his revisional power under Section 34 of the Act, as such a procedure would contravene the rule of natural justice that no one should be a judge in his own cause. But Madhavan Nair J. put the whole question slightly in a different form as this (page 980 of 52 ITR) :
'When two courses of action are indicated for a particular occasion by the statute, of which one is general and the other particular, the latter ought to be followed, especially when that alone is consistent with the principles of natural justice.'
13. There is no justifiable reason to disagree with the principles laid down by the Division Benches either in Anantha Mallan's case : [1963]47ITR93(Ker) or in George Oommen's case : [1964]52ITR977(Ker) .
14. In view of the infirmity pointed out in the notice proposing to initiate action under Section 34 of the Act, the copy of the said notice dated March 15, 1989, was made available by the Government Pleader for verification. There was no attempt by the Commissioner in that notice to explain causes for the delay in taking action under Section 34(1). No explanation is also forthcoming in annexure-C order of the Deputy Commissioner. Thus, there is failure to perform the inherent duty cast on the Commissioner while initiating action under Section 34(1) of the Act.
15. The learned Government Pleader, however, pointed out that a different view is possible with regard to the assessment for the year 1985-86. The assessment order for the said year was passed on November 5, 1985, and the appellate order on November 5, 1986. As abovesaid notice under Section 34(1) was issued on March 15, 1989, and, therefore, it was submitted that there was no unreasonable delay in initiating action in respect of the year 1985-86. In this context, the Government Pleader further pointed out that in so far as the assessment years 1981-82, 1982-83, 1983-.84 and 1984-85 are concerned the assessee had been assessed assigning the status as individual. Whatever that be, in view of the circumstances aforestated it cannot be said that a different view is unjustified with regard to the assessment for the year 1985-86. Since the impugned revisional order dated March 20, 1989, also relates to 1985-86 the said year is liable to be deleted from the said common order.
16. In view of the discussion hereinabove, the question referred to in paragraph 2 above is answered in the negative, that is to say, in favour of the assessee and against the Revenue, in respect of the assessment years 1976-77, 1977-78, 1978-79, 1979-80 and 1980-81. (I. T. R. Nos. 137 of 1994 to 141 of 1994). The reference (I. T. R. No. 142 of 1994) case relating to the year 1985-86 does not arise for consideration in view of the reasons recorded above. In view of the answer given above, the other questions referred to this court do not call for consideration.
P. Shanmugam, J.
17. Though I agree with the conclusions of my learned brother, I would like to record different reasons for the same.
18. The question that arises out of the order of the Deputy Commissioner, Agricultural Income-tax and Sales tax, Palakkad, is 'whether, on the facts and in the circumstances of the case, the power of revision under Section 34 of the Kerala Agricultural Income-tax Act, 1950, was validly exercised ?'
19. The brief facts are the following : The petitioner is an assessee under the Agricultural Income-tax Act, 1950 (hereinafter referred to as 'the Act'), for the assessment years 1976-77, 1977-78, 1978-79, 1979-80, 1980-81 and 1985-86. For all these assessments, the status assigned to the petitioner was 'individual'. On appeals preferred by the assessee, the Appellate Assistant Commissioner directed the assessing authority to refix the status as 'Hindu undivided family' for the assessment year 1976-77 and 'tenants-in-common' for the remaining years. The Deputy Commissioner invoking suo motu powers under Section 34 of the Act set aside the assessments for all the six years and directed the assessing authority to pass fresh orders. At the instance of the assessee, the above question was directed to be referred.
20. From the records, it could be seen that a report was called for by the Deputy Commissioner dated November 16, 1987. Subsequently, the office of the Deputy Commissioner issued notice dated March 15, 1989, proposing to invoke the suo motu power. The petitioner submitted his reply dated March 27, 1989. It is pertinent to note that the petitioner did not raise the question of limitation or unreasonable delay in reopening the assessment. Nor did he raise the ground of bias before the Deputy Commissioner.
21. Learned counsel appearing on behalf of the assessee submits that the Deputy Commissioner ought not to have invoked the power under Section 34 of the Agricultural Income-tax Act when there is a provision for filing an appeal. In support of his contention, he has referred to two decisions of this court in Anantha Mallan v. Commr. of Agrl. I.T. : [1963]47ITR93(Ker) and George Oommen v. Commr. of Agrl. I.T. : [1964]52ITR977(Ker) . He further submitted that the Deputy Commissioner is not competent to revise the order of the appellate authority and that too after an inordinate delay.
22. The learned Government Pleader appearing on behalf of the State defended and sought to sustain the order of the Deputy Commissioner stating that the Appellate Assistant Commissioner is subordinate to the Deputy Commissioner, and the Deputy Commissioner is empowered under Section 34 of the Act to pass appropriate orders. According to him, the section has been invoked in view of the fact that the appeal was time barred and that the order of the Appellate Assistant Commissioner was patently illegal. He further submitted that in the light of the decision of this court in reference to the same document of partition and a claim of the assessee's brother, invoking of suo motu power cannot be assailed.
23. After going through the records, it is seen that the Agricultural Income-tax Officer, Alathur, in his report dated July 16, 1987, to the Deputy Commissioner, stated that there was partition among the assessee, his brothers and further partition with his son. With that, the status of the assessee as a 'joint family' came to an end. Therefore, it is not open to the assessee to form a 'Hindu joint family' of a different kind by adding his wife. Likewise, the Income-tax Officer declared the status of the assessee as an 'individual' for the assessment years 1976-77 to 1980-81. However, on appeal before the Appellate Assistant Commissioner the status of the petitioner was directed to be modified as 'Hindu undivided family'.
24. It is pertinent to note that another brother of the assessee, Shri R. S. Chidambaram's similar contention regarding his status by including his wife as a joint family and treating it as 'Hindu undivided family' was accepted by the Appellate Assistant Commissioner. On further revision before the High Court, it was held that the findings that his brother's status was 'Hindu undivided family', was really erroneous in law and he should be assessed as an 'individual' for the entirety of the income as per the partition deed dated March 29, 1975.
25. In the report of the Agricultural Income-tax Officer, Alathur, it is further stated that the appeal could not be filed because of limitation. However, for the assessment period 1981-82 to 1984-85, the Deputy Commissioner has remanded the matter on revision for a fresh disposal and for the assessment year 1986-87 the appeal was pending before the Appellate Assistant Commissioner. In the above circumstances, the assessment files relating to the years 1976-77 to 1980-81 and 1985-86 were submitted for an order by the Deputy Commissioner. Hence, the impugned proceedings are initiated by issuing notice to the assessee. Thus, it could be seen that the matter relating to the status of the assessee and his brother was pending before the authorities at one stage or the other. In so far as his brother is concerned, the matter stands concluded by the judgment of the High Court dated June 29, 1993 in Deputy Commr. of Agrl. I.T. v. R. S. Chidambaram [1994] 209 ITR 531 based on the similar partition deed dated March 29, 1975, wherein the status of his brother was declared to be 'individual'. As the law is clear on the point and the Department for one reason or the other could not pursue the appeal against the order of the Agricultural Income-tax Officer, that too in reference to periods 1976-77 to 1980-81 and 1985-86, the suo motu proceedings have been initiated.
26. Section 34 of the Kerala Agricultural Income-tax Act (hereinafter referred to as 'the Act'), enables the Commissioner to revise the order by calling for the records of any proceedings under the Act. There is no bar or prohibition that before invoking the revisional power, the authority should exhaust the appeal provision under Section 33 of the Act. However, there cannot be any dispute on the question that if there are two remedies open, one being appeal and the other being a revision, under normal circumstances, the Department would be well advised to pursue the appellate remedy. However, when the appellate remedy is not possible or in other words for one reason or the other, the appeal could not be filed, it cannot be said that consequently revision also could not be resorted to. It is not a case where the officers have deliberately chosen to invoke the provision of Section 34 and overlooking the appeal provision. In my view, Section 34 of the Act would come to the rescue of the Revenue in all cases where it is found that there is no scope for filing an appeal either because of limitation or for any other reason. The case of the assessee that the concurrent remedy is available, cannot be accepted since the appellate orders have been passed in the year 1982 and the pursuing of a remedy by way of appeal is hopelessly barred by time. Therefore, the only way open is to invoke the provisions of Section 34.
27. The contention of learned counsel for the assessee that the Deputy Commissioner is biased in invoking the provision of Section 34 of the Act cannot stand a moment's scrutiny. Firstly, the allegation of bias has to be raised, pleaded and established. It is not open to the assessee to raise it for, the first time before this court. Secondly, a legal bias cannot be attributed to the Commissioner or Deputy Commissioner in all cases where the said provision has been invoked. That would make the revisional power meaningless. Simply because the Commissioner is sitting in judgment over the subordinate authorities would not mean that he had prejudicial mind against them. The Commissioner or Deputy Commissioner, as the case may be, are exercising the quasi-judicial powers conferred under the Act. By mere invoking the provision it cannot lead to the conclusion that the mind of the revisional authority is biased. Such a proposition would militate against the very constitutionality of Section 34. I do not find any ground whatsoever to sustain such an argument. The revisional powers are conferred on the higher authorities not only under the Agricultural Income-tax Act, but also under the various Acts. These powers are enshrined for a fair administration and superintendence over the subordinate authority and in the interest of the Revenue and the Government. A general argument that a revisional power would invariably be based on prejudicial approach against the subordinate officers cannot be entertained as a reasonable proposition. It is not the case of the assessee that the Deputy Commissioner in this case has got any bias against the assessee. In the absence of any plea with sufficient materials, I find that those arguments lack force and have to be rejected outright.
28. The Supreme Court in Registrar, Co-operative Societies v. Dharam Chand [1961] 31 Comp Cas 454, while dealing with the power of the Registrar of Co-operative Societies as an administrative head found that the decision of the Registrar deciding a dispute cannot be characterized as biased. The Supreme Court expressed their views in the following words :
'. . . the fact that the Registrar gave notice for the purpose of the removal of the managing committee was no reason to hold that he would be biased in the investigation of individual responsibility of various members of the managing committee in this matter. There could not be any official bias in the Registrar on this ground in connection with the present dispute and such bias did not disentitle him to act as a judge or arbitrator under Rule 18.'
'Therefore, even if we bear in mind the fact that the Registrar is the administrative head of the Department, we see nothing inherent in the situation which shows any official bias whatsoever in him so far as adjudication of this dispute is concerned.' (page 459)
29. In N. K. Leela Thampatty v. Commr. of Agrl. I. T. : [1972]83ITR903(Mad) , Justice Raniaprasada Rao (as he then was) was dealing with a similar provision under the Madras Agricultural Income-tax Act. In that decision, it was held as follows (page 906) :
'It is only to plug a situation faced by an aggrieved assessee who is unable to approach the appellate authorities for relief that a proceeding by way of revision is thought of by the Legislature and in such circumstances a public duty is imposed on the Commissioner not only to entertain such application, but to deal with the same . . .'
30. The argument that the Commissioner would be biased invoking Section 34 of the Act overlooks the settled principle governing the doctrine of bias. A Constitution Bench of the Supreme Court in Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468, dealing with the question of bias, formulated the following principle (headnote) :
'Tribunals or authorities who are entrusted with quasi-judicial functions are as much bound by the relevant principles governing the 'doctrine of bias' as any other judicial Tribunal. The principles governing the 'doctrine of bias' vis-a-vis judicial Tribunals are well-settled and they are : (i) no man shall be a judge in his own cause ; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias much be assumed to exist, he ought not take part in the decision or sit on the Tribunal ; and that any direct pecuniary interest, however small, in the subject matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it is sufficiently substantial to create a reasonable suspicipn of bias.'
31. In Dr. George Peter v. State of Kerala : [1994]205ITR79(Ker) , a Division Bench of this court held that to reopen the final assessment after nearly seven or eight years in exercise of the power under Section 34, cogent and sufficient reasons must be there. The Division Bench held that the power under Section 34 can be validly used in the right and proper way, which the Legislature, when conferring it, is presumed to have intended. The Division Bench also held that the power of invoking suo motu power is not unfettered or untrammelled and that whether there were cogent reasons or other difficulties which prevented the Revenue from initiating revisional proceedings within reasonable time is a question of fact.
32. In Teekoy Rubbers (India) Ltd. v. Commr. of Agrl I. T. : [1996]219ITR615(Ker) a Division Bench of this court has taken the view that there must be sufficient explanation for the exercise of suo motu power belatedly. In Grace George (Mrs.) and M. K, Thomas v. Addl. ITO : [1982]137ITR403(Ker) , a Division Bench of this court held that the choice of exercising the power under Sections 34 and 32(2) cannot be interfered with where the exercise is neither mala fide nor arbitrary. In Iswara Bhat v. Commr. of Agrl. I. T. [1995] 200 ITR 238, a Division Bench of this court has taken the view that this court has on more than one occasion held that the Commissioner of Income-tax can invoke the power of suo motu revision only within a reasonable time. The Division Bench elaborately discussed the question of method of exercising the power under Section 34. The jurisdiction of the Commissioner under Section 34 has never been doubted. They were affirming the principle that the statutory duties must be exercised bona fide and reasonably without negligence, and for the purpose for which they were conferred.
33. In Dr. Thomas Varghese v. State of Kerala : [1997]226ITR365(Ker) , a Division Bench of this court to which one of us is a party (P. A. Mohammed J.) has held as follows (page 379) :
'Section 34 is the provision which authorises the Commissioner to initiate suo motu revision. Under the said provision, the Commissioner may, of his own motion or on application by an assessee, call for the record of any proceeding under the Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to.be made and, subject to the provisions of the Act, may pass such orders thereon as he thinks fit. This provision does not provide any period of limitation for initiating action thereunder. If we construe the section literally the power under it can be exercised at any time. Such construction cannot be said to be a reasonable construction.'
34. The Division Bench thereon went on to hold that the power must be exercised within a reasonable time. The jurisdiction of the Commissioner to invoke Section 34 was never doubted. In Barium Chemicals Ltd. v. Company Law Board [1966] 36 Comp Cas 639, the Supreme Court, dealing with the formation of opinion by the Central Government, held that though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. The Supreme Court further held that the words 'reason to believe' or 'the opinion' is an altogether subjective process not lending itself even to a limited scrutiny by the court that such 'a reason to believe' or 'opinion' was not formed on the relevant facts or within the limits or restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative.
35. A Division Bench of this court in K. A. Ammarhunhi Amma v. Commr. of Agrl. I. T. : [1999]235ITR401(Ker) (I. T. R. Nos. 71 to 76 of 1993, Division Bench judgment of this court dated September 5, 1997), has taken the view that a valid exercise of the revisional power is not an infringement of the power of the assessing authority, There is no bar or inhibition against getting at escaped turnover in exercise of the revisional power under Section 35, so long as the grounds for exercise of that power are made out. In K. Ishare Bhat v. Commr. of Agrl. I. T. [1967] KIT 1073, the learned judge has taken the view that the power of the Commissioner under Section 34 is not subject to the period of limitation. The two Division Bench judgments, viz., Anantha Mallan v. Commr. of Agrl IT. : [1963]47ITR93(Ker) and George Oommen v. Commr. of Agrl. I.T. : [1964]52ITR977(Ker) , have held that if two courses are available, the appeal is the proper course to be invoked. They have not laid down the law to the effect that power under Section 34 cannot be invoked at all Consistently this court has taken the view that suo motu power must be exercised reasonably.
36. By an analysis of the decisions cited above of this court as well as the Supreme Court on the scope of Section 34 on the principle of bias, the following principles emerge :
(i) The vires of Section 34 were never under challenge.
(ii) The Commissioner is competent to invoke the provisions of Section 34.
(iii) The said power must be exercised justifiably within a reasonable period.
(iv) If two courses are open at the same time, viz., an appeal under Section 32(2) and for revision under Section 34, the Commissioner should resort to the appellate remedy.
37. Applying these principles, it can be stated that the Legislature has conferred a power of revision as well as the power of appeal against the orders of subordinate authorities. The power vests with the Commissioner. As an authority exercising the power, he is reasonably expected to invoke the powers only if circumstances warrant to invoke the suo motu revisional power. Unless specific allegations are made against the particular officer, it is reasonably and justifiably presumed that he is acting within the permissible limits of law. It will be unreasonable to presume or infer that every order invoking Section 34 would ipso facto be a biased order. Such a generalisation would undermine the legislative intent and frustrate the exercise of power conferred by law.
38. In that view of the matter, it can be safely held that the order of the Deputy Commissioner seeking to revise the order of the Appellate Assistant Commissioner dated August 5, 1986, for the period 1985-86 cannot be characterised as unreasonably delayed, in the light of the clear position of law on this point against the assessee. In my view, the Deputy Commissioner has within the reasonable period issued a notice dated March 15, 1989, for a revision. However, in reference to the order of the remaining years 1976-77 to 1980-81, the Deputy Commissioner has not set out reasons cogent and convincing, for the inordinate delay in invoking the revisional power. Inasmuch as no explanation is found in the show-cause notice or in the order of the Deputy Commissioner, the power of the Commissioner cannot be said to have been validly exercised in so far as those years are concerned.
39. For these reasons, I answer the question in favour of the Revenue in so far as the assessment year 1985-86 is concerned, and against them in reference to other years of assessment. The answers to other questions than discussed above are declined.
40. A copy of this judgment under the seal of this court and the signature of the Registrar shall be sent to the Deputy Commissioner of Agricultural Income-tax and Sales Tax, Palghat.