Cheloor Narayanan Nambudiri Vs. State of Kerala and anr. - Court Judgment

Excerpt:
- - , reported in air 1958 sc 875: the principle that the finality of orders or the sanctity of the existing rights cannot be affected by retrospective operation of a statute could not be effectively invoked in the present case because the order passed by the income-tax officer under section18-a (5), could not be said to be final in the literal sense of the word. section 35 of the agricultural income-tax act, 1950, enables the imposition of lax on escaped income as well as corrections being made when lower rates are applied. the matter is concluded by the decision of the supreme court, and secondly, as far as possible i must give effect to the legislative enactment, act 12 of 1964. this has been intentionally and purposefully made for the purpose of imposing super tax on such families.....orderp. govindan nair, j. 1. the point raised in this writ application seems to be covered by the decision of the supreme court. the petitioner was assessed to agricultural income-tax for the year 1961-62 by ext. p-1 order dated 25-1-1962. by this order, super-tax was also imposed on the family of the petitioner, which is a namboodiri family. there was an appeal, and by ext. p-2 appellate order, the super lax imposed was cancelled on the ground that section 66 of the agricultural income-tax act. 1950, did not apply to namboodiri families. since then, the agricultural income-tax act was amended by act 12 of 1964 with retrospective effect enabling the imposition of super-tax also on namboodiri families. so, a notice was issued forreopening the assessment which was concluded by ext. p-2.....

Judgment:
ORDER

P. Govindan Nair, J.

1. The point raised in this writ application seems to be covered by the decision of the Supreme Court. The petitioner was assessed to agricultural Income-tax for the year 1961-62 by Ext. P-1 order dated 25-1-1962. By this order, super-tax was also imposed on the family of the petitioner, which is a Namboodiri family. There was an appeal, and by Ext. P-2 appellate order, the super lax imposed was cancelled on the ground that Section 66 of the Agricultural Income-tax Act. 1950, did not apply to Namboodiri families. Since then, the Agricultural Income-tax Act was amended by Act 12 of 1964 with retrospective effect enabling the imposition of super-tax also on Namboodiri families. So, a notice was issued forreopening the assessment which was concluded by Ext. P-2 dated 11-9-1963, and though objections were raised, super tax was imposed by an order dated 9-6-1964, Ext. P-8. It is this order that is impugned before this Court.

2. The argument is based on Section57 of the Act, which reads as follows:

'Subject to the provisions of this Chapter, the total income of any individual, Hindu undivided family, company, unregistered 'firm, or other association of persons shall, for the purposes of super-tax, be the total agricultural income as assessed for the purposes of agricultural income-tax and where an assessment of total income has become final and conclusive for the purposes of agricultural income-tax for any year, the. assessment shall also be final and conclusive for the purposes of super lax for the same year.'

It is said that the order in this case, which is of course the appellate order Ext. P-2, has become final in regard to agricultural income-tax. This seems to be so and there are indications to that effect in Sections 32 and 34. It is therefore urged that the order is also final as regards super-tax. The argument is attractive, but I think is not sound. Dealing with the operation of the proviso in Section18-A (5) of the Indian Income-tax Act, 1922, the Supreme Court observed as follows in M.K. Venkatachalam v. Bombay Dyeing and Mfg. Co. Ltd., reported in AIR 1958 SC 875:

''The principle that the finality of orders or the sanctity of the existing rights cannot be affected by retrospective operation of a statute could not be effectively invoked in the present case because the order passed by the Income-tax Officer under Section18-A (5), could not be said to be final in the literal sense of the word. That order was and continued to he liable to be modified under Section35 of the Act.'

3. Section 35 of the Indian Income-tax, Act, 1922, is the provision which enables corrections being made of patent errors. There is also a Section similar to that in the Agricultural Income-lax Act, 1950, which is Section36. Section 35 of the Agricultural Income-tax Act, 1950, enables the imposition of lax on escaped income as well as corrections being made when lower rates are applied. If the order is not final because of Section36 of the Agricultural Income-tax Act--and so it must be taken in the light of the Supreme Court decision--it cannot be final also because of Section35. In this view, Section57 of the Act would have no application. This must be so for more than one reason. The matter is concluded by the decision of the Supreme Court, and secondly, as far as possible I must give effect to the legislative enactment, Act 12 of 1964. This has been intentionally and purposefully made for the purpose of imposing super tax on such families as well and has with that intention been made retrospective. The interpretation sough to be given by counsel for the petitioner, If accepted, would negative that intention and I cannot do so unless for compelling reason. I find no such reasons.

4. I dismiss this writ application. Therewill be no order as to costs.