Mrs. K.K. Usha, J.
1. This reference, at the instance of the Commissioner of Agricultural Income-tax, Thiruvananthapuram, under Section 60(1) of the Agricultural Income-tax Act, 1950, arises from an order of the Kerala Agricultural Income-tax Appellate Tribunal, Addl. Bench, Kottayam, in A. I. T. A. No. 41 of 1982. The relevant assessment year is 1974-75. The questions referred to this court are as follows :
'(i) Whether, on the facts and circumstances of the case, was the Agricultural Income-tax Appellate Tribunal justified in its findings that the revised assessment made under Section 35 for the year 1974-75 is not in order ?
(ii) Whether the quantum of suppression made by the assessee was in the hands of the assessing authority at the time of original assessment ?'
2. The facts relevant are as follows: The assessee, Panampunna Estates, Kottayam, is a registered firm. For the assessment year 1974-75, the assessee returned a total income of Rs. 69,923. In the light of an inspection conducted by the Intelligence Officer, Kottayam, on August 5, 1975, in the estate and head office of the assessee, revealing heavy suppression in all aspects and serious inflation of expenses, the books of account were rejected. The assessment was completed on a total income of Rs. 2,24,939 as per assessment order dated August 28, 1978. Thereafter, the assessing authority initiated proceedings under Section 35 of the Kerala Agricultural Income-tax Act, 1950, and the assessment was completed as per order dated July 2, 1979. The assessing authority reopened the assessment on the ground that the value of 2,748.9 kgs. of rubber, amounting to Rs. 14,294.28 had escaped assessment. This information was obtained by the assessing authority from the records seized by the Intelligence Squad, Kottayam, at the time of inspection of the estate and head office of the assessee-firm on August 5, 1975, and August 6, 1975.
3. Aggrieved by the above, the assessee filed an appeal before the Deputy Commissioner, Agricultural Income-tax and Sales Tax, contending that reopening could have been done only if information in respect of the income escaped was not in the hands of the assessing authority at the time of completing the original assessment. The appellate authority rejected the contention and dismissed the appeal. On second appeal, the Tribunal was inclined to accept the contention. It took the view that the assessing authority went beyond his powers. He erred in completing the original assessment by not extracting and analysing all the relevant information made available to him from the records seized by the Intelligence Squad. Later, when he came to know about his lapse, he issued notice under Section 35 to reopen the assessment. There was no sufficient information gathered by the assessing authority, after completing the assessment under Section 35 of the Kerala Agricultural Income-tax Act, 1950. The above view is under challenge at the instance of the Revenue in this reference case.
4. We heard the learned Government Pleader on behalf of the Revenue. There was no appearance for the respondent-assessee. It is contended by the learned Government Pleader that the view taken by the Tribunal is directly against the principles laid down by the decisions of this court as well as the decision of the Supreme Court. Reliance was placed by the learned Government Pleader on the following decisions in support of his contention : K.K. Ismail v. State of Kerala [1979] 43 STC 123, Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) v. T.P. Elias [1993] 90 STC 25, United Mercantile Co. Ltd. v. CIT : [1967]64ITR218(Ker) , Maharajdhiraj Sir Kameshwar Singh v. State of Bihar : [1959]37ITR388(SC) and Associated Stone Industries (Kotah) Ltd. v. CIT : [1997]224ITR560(SC) .
5. The relevant portion of Section 35 of the Kerala Agricultural Income-tax Act, 1950, reads as follows :
'35. Income escaping assessment--(1) If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income-tax Officer may, at any time within 5 (five years) of the end of that year serve on the person liable to pay the tax 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 17 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.'
6. It is contended by the learned Government Pleader that as per the records seized by the Intelligence Squad, Kottayam, at the time of inspection on August 5, 1975, and August 6, 1975, the total crop for 1973-74 was 61,904.9 kgs. of rubber. There was also a compounding of the offence. The yield of rubber fixed in the assessment for 1974-75 was 59,156 kgs. Thus, the value of 2,748.9 kgs. of rubber had escaped assessment. The fact that the above difference was not noted at the time of original assessment, would not disable the assessing authority to proceed under Section 35, in view of the wording of Section 35 :
'If for any reason, agricultural income chargeable to tax under this Act has escaped assessment'.
7. In K.K. Ismail v. State of Kerala [1979] 43 STC 123, a Division Bench of this court had occasion to consider the scope of assessment of escaped turnover under Section 19 of the General Sales Tax Act with similar wording. After referring to an earlier Bench decision of this court in George v. STO [1963] KLJ 769, the Division Bench held as follows (page 125) :
'The reasons for the escape may vary from case to case ; but that is of no consequence. If the turnover is mentioned in the return, the escape may be due to the stupidity of the assessing authority. If it is not mentioned or so mentioned as not to alert the assessing authority, the escape may be due to the cupidity of the assessee himself. But whatever be the reason, if an escape has occurred, it is an escape from assessment; what escapes is the turnover and Rule 33(1) comes into play.'
8. According to the learned judges, the wide and comprehensive way in which Section 19 of the Kerala General Sales Tax Act, 1963, opens is sufficient to make it clear that the power of reassessment can be exercised 'if, for any reason', the whole or any part of the turnover of a dealer has escaped assessment or has been underassessed or has been assessed at a lower rate. The reason being immaterial, it is of no consequence whether what happened was a mere change of opinion on the part of the succeeding officer from that formed by his predecessor. In view of the difference in the language of the concerned sections, the principles of the decisions under Section 147 of the Income-tax Act, 1961, can have no application to cases under Section 19(1) of the Kerala General Sales Tax Act, 1963.
9. The above decision was followed by a later Bench decision in Deputy CST v. T.P. Elias [1993] 90 STC 25 and Deputy CST v. Cee Vee Kay Co. [1996] 103 STC 55 . It was held in Deputy CST v. T.P. Elias [1993] 90 STC 25 , that the section enables the assessing authority to bring to tax the turnover which has escaped assessment for whatever reason the turnover has escaped assessment. Reference was also made in this case to the decision of the Supreme Court in Maharajadhiraj Sir Kameshwar Singh v. State of Bihar : [1959]37ITR388(SC) . In the above case, the Supreme Court had occasion to consider the provisions contained under Section 26 of the Bihar Agricultural Income-tax Act, 1938. The terms of the above section are in pari materia with Section 35 of the Agricultural Income-tax Act, 1950. The relevant portion of Section 26 of the Bihar Act reads as follows (page 390) :
'If for any reason any agricultural income chargeable to agricultural income-tax has escaped assessment for any financial year, or has been assessed at too low a rate, the Agricultural Income-tax Officer may, . . . serve on the person liable to pay agricultural income-tax on such agricultural income ... a notice containing .... and may proceed to assess or reassess such income . . .'
10. In the above case, accepting the contention raised by the assessee, exemption was granted in respect of certain amounts from payment of agricultural income-tax. After the assessee paid two instalments out of three after the assessment order, the Agricultural Income-tax Officer issued notice under Section 26 on the ground that agricultural income from certain lease, which should have been taxed, had escaped assessment. A supplementary assessment order was then passed. The assessee challenged the reopening of the assessment. After referring to several decisions, including those which arose under Section 34 of the Indian Income-tax Act, the Supreme Court observed that the words of Section 26 of the Bihar Act, do not involve possessing of or coming by some fresh information. The use of the words 'any reason' which are of wide import dispenses with those conditions by which Section 34 of the Indian Income-tax Act is circumscribed. It was therefore held that the Agricultural Income-tax Officer was competent under Section 26 of the Act to assess an item of income which he had omitted to tax earlier, even though in the return that income was included and the Agricultural Income-tax Officer then thought that it was exempt.
11. Going by the dictum laid down in the above decisions, it has only to be held in the facts of this case that the assessing authority has correctly exercised his jurisdiction under Section 35. But it is necessary to refer to one more decision of this court in M.S. Ramaraj v. Commissioner of Agricultural Income-tax : [1981]131ITR429(Ker) . In this Bench decision, the question was whether, after the Agricultural Income-tax Officer arrived at a finding on the basis of the opinion formed by him in respect of a certain lease deed and completed the assessment on that basis, a successor Income-tax Officer, while effecting the assessment for the next assessment year, can re-examine the matter and come to a totally different conclusion and on that basis take proceedings under Section 35 of the Agricultural Income-tax Act to reopen the assessment order already made. Without referring to the earlier Bench decisions of this court in R.S. Narayana Shenoi v. State of Kerala [1961] 12 STC 665 or K.K. Ismail v. State of Kerala [1979] 43 STC 123 or the decision of the Supreme Court in Maharajadhiraj Sir Kameshwar Singh v. State of Bihar : [1959]37ITR388(SC) , the learned judges observed that it is now well established that such a mere change of opinion on the part of either the same officer or his successor in regard to any relevant matter concerning the tax liability of the assessee will not justify resort being taken to the power conferred by Section 35 of the Act. With great respect to the learned judges, we are constrained to observe that the above observation is directly against the principles laid down in the earlier Bench decisions of this court as well as in the decision of the Supreme Court.
12. As mentioned earlier, the provision in the Bihar Agricultural Income-tax Act, which was the subject-matter of the decision by the Supreme Court in Maharajadhiraj Sir Kameshwar Singh v. State of Bihar : [1959]37ITR388(SC) was pari materia with the provisions contained under Section 35 of the Agricultural Income-tax Act, 1950. Therefore, we would be fully justified in applying the dictum laid down by the Supreme Court in the above case to the facts of the present case. The provisions contained in Section 19 of the Kerala General Sales Tax Act, which were the subject-matter for consideration in the decisions in Deputy CST v. T.P. Elias [1993] 90 STC 25 and Deputy CST v. Cee Vee Kay and Co. [1996] 103 STC 55 are also similarly worded.
13. Recently, the apex court had occasion to consider an issue relating to assessment of escaped income under Section 34(l)(b) of the Indian Income-tax Act, 1922. The relevant provisions read as follows (see : [1997]224ITR560(SC) ) :
34. Income escaping assessment--If, . . .
(b) notwithstanding that there has been no omission or failure as mentioned in Clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed, he may in cases falling under Clause (a) at any time and in cases falling under Clause (b) at any time within four years of the end of that year, serve on the assessee ... a notice. . . .'
14. The Supreme Court observed (page 577) :
'It is now fairly settled that the information obtained by the Income-tax Officer need not be one outside the record ; it may be one obtained from the assessment records already available.'
15. Reference was made to the decision of a Constitution Bench in Anandji Haridas and Co. (P.) Ltd, v. S.P. Kushare, STO : [1968]1SCR661 , where the Supreme Court had approved the following observation made by the Madras High Court in Salem Provident Fund Society Ltd. v. CIT : [1961]42ITR547(Mad) :
'We are unable to accept the extreme proposition that nothing that can be found in the record of the assessment which itself would show escape of assessment or underassessment, can be viewed as information which led to the belief that there has been escape from assessment or under-assessment. Suppose a mistake in the original order of assessment is not discovered by the Income-tax Officer himself on further scrutiny but it is brought to his notice by another assessee or even by a subordinate or a superior officer, that would appear to be information disclosed to the Income-tax Officer. If the mistake itself is not extraneous to the record and the informant gathered the information from the record, the immediate source of information to the Income-tax Officer in such circumstances is in one sense extraneous to the record. It is difficult to accept the position that while what is seen by another in the record is 'information' what is seen by the Income-tax Officer himself is not information to him. In the latter case he just informs himself. It will be information in his possession within the meaning of Section 34. In such cases of obvious mistakes apparent on the face of the record of assessment, that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under-assessment.'
16. Reference was also made to the decision of this court in United Mercantile Co. Ltd. v. CIT : [1967]64ITR218(Ker) where the meaning of the word 'information' was considered. It was held that 'inform' means to 'impart knowledge' and a detail available to the Income-tax Officer in the papers filed before him does not by its mere availability , become an item of 'information'. It is transmuted into an item of information in his possession only if and when its existence is realised and its implications recognised. Section 35 is couched in wide terms. Under the above section, an assessing authority can initiate proceedings if the whole or any part of the turnover of the dealer has escaped assessment 'for any reason'.
17. In view of the above, we have no hesitation to hold that the Agricultural Income-tax Appellate Tribunal was not justified in its findings that the revised assessment made under Section 35 for the year 1974-75 was not in order. It is irrelevant whether the quantum of suppression made by the assessee was in the hands of the assessing authority at the time of original assessment or not. Even if these materials were available in the file, but were omitted to be taken into consideration by the assessing authority at the time of passing the original assessment order, initiation of proceedings under Section 35 would be justified on those materials.
18. In view of the above, we answer question No. 1 in the negative, in favour of the Revenue and against the assessee and decline to answer question No. 2.
19. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Agricultural Income-tax Appellate Tribunal, Additional Bench, Kottayam.