ORDER
Jagannatha Shetty, J.
1. Whether an order under Section 21 of the Karnataka Agricultural Income Tax Act, 1957 (the 'Act') is appealable or not is the short question raised for consideration in theseRevision Petitions.
2. For the year 1969 - 70 and 1970 - 71, the Agricultural Income-tax Officer (A.I.T.O.) concluded assessments under Section 19(4) of the Act in respect of the agricultural income of the respondent who did not respond to any of the notices issued.
The respondent assesses moved the A.I.T.O. with an application under Section 21 of the Act with an affidavit and medical certificate for cancellation of the said assessment orders. In the affidavit in support of that application, he has stated that he was suffering from diabetes and blood pressure since very long time and, therefore, could not attend the office punctually nor able to comply with theterms of notices issued to him. The A.I.T.O. dismissed the application disbelieving the averments of the respondent with an observation that he had no mind tocooperate with the Department and he was given enough time to file return.
Consequent on the dismissal of the application under Section 21, the assessments made under Section 19(4) of the Act remain undisturbed.
Against the order of the A.I.T.O. dismissing the application under Section 21, the assessee preferred an appeal before the Deputy Commissioner under Section 32 of the Act. The (Deputy Commissioner dismissed the appeal as not maintainable. But he succeeded in his further appeal before the Tribunal. The Tribunal held that the appeal against the order under Section 21 is maintainable. It gave the following reasons :
'The provisions of Section 21 are such that the Agricultural Income-tax Officer shall cancel the assessment made under Section 19(4) of the Act if any of the conditions stipulated under Section 21 aresatisfied. Section 21 is something like an appeal provision against orders passed under Section 19(4) of the Act. Therefore, the legislature did not want to provide another avenue of redressal to be given andspecifically excluded appeals against orders under Section 19(4) of the Act by introducing the proviso to Section 32(1) of the Act. In case theAgricultural Income-Tax Officer refuses to exercise his powers under Section 21 of the Act judiciously there was no way of redressal except to go inappeal against such an order. In this context, we opine that the appeal provisions under Section 32 of the Act were wide enough to include an appeal against an order passed under Section 21 of the Act.'
The State has challenged the correctness of the view taken by the Tribunal.
3. The question now to be considered is whether the respondent has a right of appeal against an order underSection 21 of the Act. In order to appreciate the contention, it is necessary to refer to the relevant provisions of the Act.
Section 19 provides for assessment of income. Section 19(4) provides for making assessment if any person fails to make a return under sub-section (1) or (2) of Section 18 or fails to comply with all the terms of a notice issued under sub-section (4) of Section 18 or under sub-section (2) thereof. The A.I.T.O. in such events could make an assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment.
Section 21 provides procedure for cancellation of assessment made under Section 19(4).
'Section 21
Cancellation of assessment in certain cases. Where an assessee within one month from the service of a notice of demand issued as hereinafter provided satisfies the Agricultural Income-Tax Officer that he wasprevented by sufficient cause from making the return required by Section 18 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 19 or that he had not a reasonableopportunity to comply, 'or prevented by sufficient cause from' complying with the terms of any such notice, the Agricultural Income-Tax Officer shall cancel theassessment and proceed to make a fresh assessment in accordance with the provisions of Section 19.'
It is open to the assessee to move the A.I.T.O. within one month from the service of a notice of demand on the grounds specified under Section 21 for cancellation ofassessment made under Section 19(4). If the A.I.T.O. accepts the cause shown by the assessee, he shall cancel the assessment and proceed to make a fresh assessment in accordance with Section 19.
'Section 32
Appeal against assessment :- (1) Any assessee objecting to the amount of income assessed or tax determined or loss computed under Section 19 of the amount of tax determined under Section 19 or denying his liability to be assessed under this Act, or objecting to any order under any of the provisions of Sections 22, 26, 29, 30 and 42 made by the Agricultural Income Tax Officer may appeal to the Deputy Commissioner against the assessment or order ;
Provided that no appeal shall lie in respect of an assessment made under sub-section (4) of Section 19.'
This Section confers a right of appeal on any assesses who objects to the amount of income assessed under Section 19, or denies his liability to be assessed under the Act. It also provides for an appeal against any order under any of the Sections 22, 26, 29, 30 and 42 made by the A.I.T.O. It, however, expressly bars appeal against an assessment made under Section 19(4).
Mr. Katageri, Learned Counsel for the Respondent, urged that since the Respondent is denying his liability to be assessed under the Act, he must be held to have a right of appeal under Section 32.
The Supreme Court in C.I.T. v. The Kanpur Koal Syndicate, : [1964]53ITR225(SC) while examining the scope of Section 30 of the Income-Tax Act, 1922, observed that the expression 'denial of liability' is comprehensive enough to take in not only the total denial of liability but also the liability to tax under particular circumstances. It was held that in either case, the denial is denial of liability to be assessed under the provisions of the Act.
4. If the Respondent could challenge his liability to be assessed under the Act in the appeal against an order under Section 21, he must be held to have the right of appeal under Section 32. But, in our opinion, he has no such right in that appeal. The jurisdiction of the Appellate Authority cannot be wider than that of the original authority. He could agitate in such an appeal only the correctness of the order under Section 21 refusing to cancel the assessment made under Section 19(4) and not the validity of the saidassessment itself. He could only plead before the appellate authority that the cause shown by him for cancellation of the assessment was genuine and must be accepted. He could only show that he was prevented by sufficient cause from making the return or that he did not receive the notice, or that he had no reasonable opportunity to comply with the terms of the notice issued by the A.I.T.O. He could also show that he was prevented by sufficient cause from complying with the terms of any such notice. If he satisfies the A.I.T.O. on any one of these grounds, then the assessment under Section 19(4) goes, but not the liability to be assessed. Then there would be fresh assessment under Section 19 by the A.I.T.O. The denial of liability to be assessed under the Act cannot obviously be one of the questions to be raised or examinedin the appeal against an order under Section 21 assuming that such an appeal is maintainable.
5. Mr. Katageri next urged that when the A. I. T. O. refuses to cancel the order of assessment made under Section 19(4), then that assessment would be a liability against the assessee and that liability can be avoided only by filing an appeal under Section 32. We could have accepted thiscontention but for the bar imposed by Section 32. If the application under Section 21 is rejected, the assessment made under Section 19(4) no doubt, remains undisturbed. But, then the assessee has no right to prefer an appeal against the assessment under Section 19(4). Section 32 expressly , denies that right. That is the legislative intent. What has beenexpressly barred under Section 32 cannot be impliedly conferred by the canon of construction.
6. The Tribunal, in our opinion, was, therefore, not justified in holding that the Respondent has a right of appeal against an order under Section 21 of the Act.
7. In the result, these Revision Petitions are allowed and in reversal of the order of the Tribunal, the order of the Deputy Commissioner is restored.