A.P. Srivastava, J.

1. This special appeal has been preferred against an order of Mr. Justice Chaturvedi by which he rejected a petition filed by the appellant under Article 226 of the Constitution. Four other petitions had been filed by the appellant with similar prayers. All the five petitions were disposed of by a common judgment, as the questions of law which they sought to raise were identical.

2. The appellant is a firm which carries on business of supplying seeds and plants at Saharanpur. The appellant was assessed to agricultural income-tax under the U. P. Agricultural Income-tax Act, 1949. It was not found assessable for the year 1947-48 but was assessed for the years 1948-49, 1949-50, 1950-51, 1951-52 and 1952-53 on 25-10-1949, 26-9-1950, 25-9-1951, 12-9-1952 and 6-4-1954 respectively.

The appellant acquiesced to the assessments in respect of the other years but filed an appeal before the Commissioner, Agricultural Income-tax in respect of the assessment for the year 1951-52. In that appeal the Commissioner enhanced the assessable income of the appellant. The appellant then filed an application in revision against the appellate decision of the Commissioner before the Revision Board.

While this revision application was pending, in June 1955, the State filed six applications in revision before the Revision Board in respect of the assessments of the six years, viz., 1947-48, 1948-49, 1949-50, 1950-51, 1951-52 and 1952-53. Notices in respect of these revision applications by the State were served on the appellant. It had no objection to the maintainability of the revision petition filed in respect of the assessment for the year 1951-52 as its own revision application was also pending before the Board of Revision in respect of that year.

It, however, filed five petitions under Article 226 of the Constitution praying for a suitable order or direction, including a writ in the nature of prohibition calling for the record of the revision applications filed by the State and quashing the proceedings. It also wanted the State to be directed to forbear from proceeding with the revision applications.

3. It was argued that under Section 25 of the Agricultural Income-tax Act a limitation of one year was fixed for re-opening assessments which had been finalised and for assessing or re-assessing escaped incomes. Section 22 of the Act which conferred powers of revision on Revision Board was, it was contended, subject to the provisions of Section 25 of the Act.

It was, therefore, urged that the Revision Board had no jurisdiction in the exercise of its revisional powers at the instance of the State to consider the question of re-opening the already completed assessments for the years 1947-48, 194S-49, 1949-50, 1950-51 and 1952-53 thus to contravene the express provisions of Section 25 of the Act.

4. A preliminary objection against the petitions was raised on behalf of the State and it was urged that the revision applications having already been filed before the Revision Board it was within the jurisdiction of that authority to hear and decide them. The objection raised in the petitions it was contended could be urged before the Revision Board itself and if was found tenable, it would be given 'effect to by that Board. No writ of prohibition, it was pointed out, could be issued directing the Board not to proceed with the hearing of the revision applications.

5. The preliminary objection found favour with the learned Judge and he rejected the petitions. In his order, however, he remarked that there was a decision of the Patna High Court reported in Province of Bihar v. Khetro Mohan Kumar, AIR 1949 Pat 418 (A), which appeared to support the appellant's contention but observed that it was open to the petitioner to rely on that authority before the Revision Board.

6. Appeals were filed against the dismissal of all the five petitions and during the pendency of the appeals the Revision Board took up the applications in revision filed by the State for disposal along with the application for revision which the appellant had himself filed in respect of the assessment year 1951-52. The decision of the Patna High Court was brought to the notice of the Revision Board but was not followed by it.

The Board took the view that the matter had come to it in the ordinary course and the question it was considering was the correctness or otherwise of the assessments made under Section 16 of the Act. The Board was also of opinion that the proceedings before it could not be governed by the restrictions provided in Section 25.

Holding that the assessment orders had not been properly made in respect of the years 1355 to 1358-F and 1360 Fasli, the assessments of those years were set aside and the cases were sent back to the assessing authority for fresh assessments in respect of those years. The revision filed by the State in respect of the year 1359 Fasli was dismissed. The revision of the appellant in respect of the year 1951-52 was also dismissed. These orders were passed by the Board on 31st October, 1956.

7. After this decision of the Revision Board the appellant obtained leave from this Court for the amendment of his memorandum of appeal in all the five cases. By this amendment the prayer made in the petition was altered and a suitable order or direction including the writ of certiorari was prayed for quashing the order of the Board of Revision passed in the revision applications.

A writ of mandamus was also prayed for directing the State to forbear from taking any other proceedings against the appellant with a view to imposing any assessment in respect of the agricultural income-tax for the years in question. Permission was also granted to amend the prayers in the petitions themselves but the prayers were not actually amended.

8. The main contention pressed in appeal is that the revisional powers of the Board of Revision under Section 22 of the Agricultural Income-tax Act are subject to the provisions of Section 25 of the Act and after the expiry of the period of limitation mentioned in the latter section it was not open to the Board of Revision, in the exercise of its revisional powers, to order re-assessment in the manner in which the Board had directed by its order dated 31st October, 1956. It was, therefore, contended that the order of the Board of Revision was liable to be quashed. Reliance in support of the contention was again placed on the Patna case of AIR 1949 Pat 418 (A).

9. The reply of the learned counsel for the respondent is two-fold. He urges in the first place that the applications made by the State before the Revision Board only had the effect of continuing before that body the question of proper assessment in respect of the various years which had been made under Section 16 of the Act. If the assessments had not beenproperly made it was open to the State to move the Revision Board to direct that they be properly made.

It was, therefore, not a question of reopening any assessment or of assessing any escaped income and Section 25 of the Act did not apply at all. The alternative contention is that really there is no inconsistency between Section 22 and 25 of the Act. The provisions of Section 25 only prohibit the assessing authorities from pursuing a particular course of action after the expiry of the fixed period.

The Board of Revision is not an assessing authority and is therefore unaffected by the provisions of Section 25. The Board in its revisional powers may issue any instructions. The grievance of the appellant will arise only if in following those directions the assessing authorities contravene the provisions of Section 25 of the Act. This contravention can be challenged by the assessee in appeal and again in revision.

If the assessee is not able to get adequate relief in those proceedings it is open to him to question the order under Article 226 of the Constitution. The appellant was therefore not entitled to a writ of prohibition directing the Board not to hear the applications in revision and now that the applications have been heard it is hot entitled to have the decision quashed by a writ of certiorari.

10. The scheme of the U. P. Agricultural Income-tax Act, 1948 shows that 'assessing authorities' are enumerated in Section 14. The Board of Revision is not one of them. Return of income is made under Section 15 and assessment is made under Section 16. If the assessee is dis-satisfied with the assessment he can appeal to the Commissioner of Agricultural Income-tax under Section 21. In Section 23 the order passed under Section 21 is described as a final order and is to be communicated to the assessee as well as to the prescribed authority. Section 22 of the Act then provides :

'REVISION BY BOARD: (1) The Revision Board may, on their own motion or on an application, call for the record of any proceeding under this Act pending before or decided by any authority subordinate to the Revision Board and after such inquiry as they deem necessary, may pass such orders as they think fit :

Provided that the Revision Board shall not pass any order prejudicial to an assessee without giving him a reasonable opportunity of being heard.

(2) Any order passed by the Revision Board under Sub-section (1) shall, subject to any reference that may be made to the High Court under Section 24, be final.'

11. Section 24 provides for a reference to the High Court and Section 25 deals with income escaping assessment. It lays down:

'If for any reason any agricultural income chargeable to agricultural income-tax has escaped assessment for any year or has been assessed at too low a rate, the assessing authority may at any time within two years of the expiry of that year, serve on the person liable to pay agricultural income-tax on such agricultural income 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-sections (3) and (3-B) of Section 15 and may upon service of such notice proceed to assess or re-assess 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-sec-lion :

Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be.'

12. Section 26 relates to rectification ofmistakes.

13. It will be noticed that though periods of limitations are provided for in Section 21, 24; 25 and 26, no period of limitation is provided for the exercise of the revisional powers of the Board under Section 22. Under Section 23 the orders passed under Section 22 are also to be considered final orders and communicated to the assessee and the prescribed authority.

14. An analysis of Section 25 of the Act makes the following features clear :

1. It confers powers of assessment or reassessment only on the assessing authorities. As has already been mentioned, assessing authorities are enumerated in Section 14 and the Revision Board is not one of them.

2. The powers conferred by this section can be exercised only in two contingencies namely if for any reason some agricultural income has escaped, assessment or if it has been assessed at too low a rate.

3. If the assessing authority wants to exercise the powers conferred by this section it must take action before the expiry of two years from the last date of the year for which some income has escaped assessment or has been assessed at too low a rate. The period of two years is to be counted from the last date of the year in question and not from any other date. If this period of two years has not for any account expired no action can be taken under Section 25.

4. Action under Section 25 is to be initiated by service on the person liable to pay the tax of a notice complying with the requirements of Sub-sections (3) and (3-B) of Section 15.

5. After a service of the notice it will become open to the assessing authority either to assess an income which has escaped altogether or to reassess the income by applying a higher rate.

6. In case assessment or re-assessment is made under Section 25 all the provisions of the Act including provisions relating to appeal and revision shall be applicable as if the assessment was being made on the basis of a return under Section 15.

7. The rate at which the tax will be charged in assessment or re-assessment under Section 25 shall be the rate which would have been chargeable if the assessment had been made in the ordinary manner.

15. The expression 'income which has escaped assessment' has not been defined in the Act but appears to have been borrowed from Section 34 of the Indian Income-tax Act. In that connection it has been held that the expression is not confined to cases where the income has eluded notice, ..... .or is not included in thereturn but covers those items of income also which though shown in the return are not assessed for some reason or the other; see Madan Mohan Lal v. Commissioner of Income-tax, Punjab and N. W. F. P., AIR 1935 Lah 742 (KB) (B) and Nawal Kishore Kharaiti Lal v. Commissioner of Income-tax Punjab and N. W. F. P., AIR 1936 Lah 897 (C). In a Rangoon case reported in Commissioner of Income-tax, Burma v. Ved Nath Singh, AIR 1940 Rang 65 (SB) (D), a Special Bench of that Court held that

''an income was to be taken to have escaped assessment within the meaning of Section 34 of the Income-tax Act when it has not been assessed in the assessment year under consideration. The omission to assess the income may be due to a variety of reasons. It may not have been disclosed by the assessee in his return, the assessing authority may have omitted to notice it, an unjustified exemption or allowance may have been allowed, wrong calculations may have been made or an incorrect rate may have been applied. In all these contingencies the result will be that the total tax chargeable will not be levied and the whole or a portion of the income will escape assessment.'

In our opinion the phrase 'income which has escaped assessment' has the same meaning when used in the Agricultural Income-tax Act.

16. Section 25, thus clearly provides that it is not open to the assessing authorities after the period of the limitation mentioned in the section to assess or re-assess any income which ought to have been assessed earlier. If the assessing authority is definitely prohibited from making such an assessment or re-assessment it can hardly claim to be entitled to do so under the directions of the Revision Board. It is obvious that the Revision Board cannot authorise the assessing authority to do something which under the law that authority is not entitled to do.

17. Learned counsel for the respondent pointed out in this connection that unlike Section 33 of the Income-tax Act Section 22 of the Agricultural Income-tax Act does not contain the word, 'subject to the provisions of this Act'. On that basis he argued that the revisional powers of the Board of Revision could not be subject to the provisions of Section 25. It is difficult to accede to this contention.

It cannot be said that the powers of the Commissioner under Section 33 of the Income-tax Act would not be subject to the other provisions of the Act if those words had not been there in the section. The words appear to have been put in there only as a matter of abundant caution. The terms of Section 22 of the AgriculturalIncome-tax Act are certainly wide as the Revision Board can pass any orders which it considers fit.

But can it be said on that account that in passing such orders the Revision Board can ignore, or can set at naught the provisions of the Act? Can it impose a tax on a person whose income falls below the minimum provided? Can it direct that a rate be applied in contravention of the rate mentioned in the schedule of the Act? The Board cannot obviously direct the assessing authorities to do what the Act does not authorise them to do. In that sense Section 22 is clearly subject to the other provisions of the Act including Section 25.

18. In the present case the Board of Revision has entertained the applications in revision filed before it by the State, There can be no doubt that the applications were made after a very great delay. There is, however, no limit provided in the Act for making applications in revision to the Revision Board. It cannot, therefore, be said that the applications should have been rejected as time-barred.

The Board was, therefore, entitled to entertain those applications. It had jurisdiction to deal with them and to decide them. No writ of prohibition could, therefore, be issued preventing the Board either from entertaining the applications or from dealing with them. We think therefore, with respect, that the view taken by Chaturvedi, J., in this connection was right.

19. The Revision Board has now decided the applications in revision, and finding that in respect of five of the six years in dispute the assessment had not been properly made. It has sent the cases relating to those years back to the assessing authorities for making the assessments according to law. In respect of this order too it cannot be said that the Board has exceeded its jurisdiction in any manner. If it could consider and entertain the applications in revision, it could while deciding them remand the cases for reconsideration by the assessing authorities.

20. The Board has not directed the assessing authority to contravene the provisions of Section 25 of the Act nor has it authorised the authority in any manner to act contrary to what has been laid down in that section. The order of the Revision Board is, therefore, not open to challenge on the ground of want of jurisdiction or any error of law apparent on the face of the record. No question of quashing it by a writ of certiorari arises in the circumstances.

21. Learned counsel for the appellant, however, contended that his client apprehended that on the basis of the directions issued to by the Revision Board the assessing authority may proceed to enhance the tax assessed on the appellant in respect of the five years in question and if that is done it will amount to a clear breach of the provisions of Section 25. We are not satisfied that this apprehension of the appellant has any legal basis.

There is no reason to suppose that when the assessing authority begins to reconsider the matter as a result of the remand it will go out of his way to make an assessment or reassessment which is prohibited by Section 25. If, however, it does so, it will be open to the appellant to question the order in appeal and then if necessary to go up in revision to the revising authority. If even that does not serve the purpose it may be open to the appellant to challenge the illegal order by the writ petition. Until, however, the assessing authority passes an order contravening the provisions of Section 25 the appellant cannot claim to have any grievance.

22. It was contended on behalf of the respondent that the applications in revision filed before the Revision Board only amounted to a continuation of the assessments which had been made by the assessing authority in respect of the various years. That being so it is urged the actual effect of the orders of the Revision Board is that that assessment should be reconsidered and made on a correct basis.

As long us the assessment was continuing no income could have been said to have escaped assessment and there could be no question of contravening the provisions of Section 25. Reliance is placed in this connection on the case of Sir Rajendra Nath Mukerji v. Commissioner of Income-tax . This contention does not appear to be well founded.

The assessments for the years 1947-48, 1948-49, 1949-50, 1950-51 and 1952-53 were certainly subject to modification in appeal but when no appeals were filed against them either by the State or by the assessee they became final. They cannot be held to have lost their finality simply because there was a chance of their being questioned in revision at a late date. The orders having become final, the assessments cannot be said to have been continuing. The filing of the applications in revision could not extend the continuance of the assessments. As was observed by the Privy Council in Commissioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdas ,

'It had been argued on behalf of the appellant that the Act nowhere imposes any limit of time within which an assessment under the provisions of Section 23 and 29 is to be made, and that the service of the notice of demand can therefore be made at any time. This is true. It had, in effect, been so determined by this Board in 61. Ind App . But it is not true that after a final assessment under those sections has been made, the Income-tax Officer can go on making fresh computations and issuing fresh notices of demand to the end of all time. It is possible that the final assessment may not be made until some years after the close of the fiscal year.

Questions of difficulty may arise and cause considerable delay. Proceedings may be taken by way of appeal and cause further delay. Until all such questions are determined and all such proceedings have come to an end there can be no final assessment. But when once a final assessment is arrived at, it cannot, in their Lordships' opinion be reopened except in the circumstances detailed in Section 34 and 35 of the Act (to which reference is made hereafter) and within the time limited by those sections.'

It is therefore not correct that it was open to the State to circumvent all the provisions of Section 25 of the Agricultural Income-tax Act by making a belated petition to the revising authority and attempting in that way to have the income of the appellant reassessed after the period of limitation fixed for that purpose has expired.

23. In view of what has been said above,it appears to us that the appellant is not atpresent entitled to any of the reliefs which ithas claimed. The appeal is, therefore, dismissed. In the circumstances of the case, however,we think it will be fair if the parties are leftto bear their own costs. We order accordingly.