MEHROTRA, C.J. - (1.) THESE Civil Rules arise out of petitions filed under article 226 of the Constitution of India, and as a common question of law is raised, these are disposed of by one common judgment. Civil Rules Nos. 233, 234, 235 and 236 of 1961 arise out of petitions filed by Sri D. C. Chaudhuri and Sri S. C. Dutt against the Agricultural Income-tax Officer, Assam, and the State of Assam. The case of the petitioners is that they owned the Martycherra Tea Estate in the district of Cachar, which they purchased on the 1st January, 1948. On the 9th July, 1953, they sold the said garden, and during the period 1st January, 1948, and 9th July, 1953, the petitioners carried on the business of cultivation, manufacture and sale of black tea at the said Martycherra Tea Estate under a partnership. The two petitioners were the sole partners of the firm. The partnership firm was served with a notice under the Indian Income-tax Act by the Income-tax Officer and was assessed to income-tax for the assessment year 1951-52. Appeals were filed against the assessment order before the Appellate Tribunal. In appeal, the petitioners got substantial reliefs. After the sale of the Martycherra Tea Estate by the petitioners on the 9th July, 1953, they ceased to have any agricultural income. On the 25th January, 1961, directing the two petitioners to furnish the returns of their agricultural incomes for the assessment year 1949-50 to 1953-54. On the 27th January, 1961, the petitioners received a notice of demand under section 23 of the Assam Agricultural Income-tax Act, 1939, hereinafter called the Act, directing them to pay Rs. 8,128 as agricultural income-tax within the 21st July, 1961, for the assessment year 1950-51. The assessment was made under section 20 (4) of the Act. This order of assessment dated the 8th of June, 1961, under section 20 (4) of the Act in respect of the assessment year 1950-51 has been impugned by means of a petition under article 226 of the Constitution of India, giving rise to Civil Rule No. 233 of 1961. The petition under article 226 of the Constitution by which the assessment order for the year 1951-52 under section 20 (4) of the Act has been challenged, is the subject-matter of Civil Rule No. 234 of 1961. The order of assessment was passed in this case on the 8th June, 1961. Civil Rule No. 235 of 1961 relates to the assessment for the year 1952-53 made under section 20 (4) of the Act on the 8th June, 1961. Civil Rule No. 236 of 1961 relates to the assessment year 1953-54 made under section 20 (4) on the 8th June, 1961.
(2.) THE petition under article 226 of the constitution which has given rise to Civil Rule No. 238 of 1961 has been filed by the Eastern Tea Estate Private Limited. THE case of the petitioner is that it is a private limited company incorporated in the State of Assam on the 4th July, 1950, and has its registered office at Silchar. Two tea estates are owned by this private limited company known as Chandana Tea Estate and Martycherra Tea Estate. THE Chandana Tea Estate was purchased in 1950 from the Indian Tea and Mill Industries Limited. THE transfer took place on the 15th May, 1950, to the promoters of the petitioner company, though the actual conveyance was executed and registered on 27th September, 1950. THE Martycherra Tea Estate was purchased from Messrs. D. C. Chaudhuri and S. C. Dutt on the 9th July, 1953. This petitioner also received a notice under the Indian Income-tax Act for the assessment year 1951-52. As no notice under section 19 (2) of the Assam Agricultural Income-tax Act, 1939, was received by the petitioner for the assessment years 1951-52 to 1955-56, both inclusive, no returns were filed. On the 19th October, 1959, the petitioner received a letter from respondent No. 1, the Agricultural Income-tax Officer, Shillong, asking the petitioner to submit returns and certified central assessment copies in respect of Martycherra Tea Estate for the assessment years 1950-51 and onward. THE petitioner company wrote on the 18th November, 1959, to the Agricultural Income-tax Officer that no notice was served on the petitioner under the Act previously, and that the letter dated the 19th October, 1959, was the first communication on the subject. In this letter, it was pointed out that the petitioner owned the Chandana Tea Estate, beside the Martycherra Tea Estate, and the petitioner proposed to submit returns for the years in respect of which it was liable under the Act. On the 19th October, 1959, the petitioner received a notice under section 19 (2) of the Act in the prescribed form, which directed the petitioner to submit the returns of agricultural income in respect of the previous year for Martycherra Tea Estate. In response to this notice, the petitioner submitted the return for the year ending 31st December, 1958, in respect of the agricultural income from both these two tea estates. After the said return was submitted on the 18th December, 1959, the petitioner received another letter dated the 20th August, 1959, directing the petitioner to submit returns of agricultural income and copies of central assessments in respect of Chandana Tea Estate for the years 1951-52 and onward on the allegation that the petitioner had purchased the said estate from one late Bipin Chandra Bhattacharjya in 1949. On the same day, a notice under section 19 (2) of the Act was received in respect of the Chandana Tea Estate and another notice under section 30 of the Act in the prescribed form, alleging that agricultural income from all sources chargeable to agricultural income-tax for the assessment years, ending 31st March, 1958 and 1959, had wholly escaped assessment and the petitioner was directed to deliver within thirty days of the receipt of the notice, a return in the prescribed form. On the 23rd December, 1959, the petitioner sent a letter indicating compliance of the notice under section 30, and respondent No. 1 was informed that the return for the assessment year 1956-60 had already been sent on the 18th November, 1959. On the 7th January, 1960, the petitioner received another letter dated January 2, 1960, asking the petitioner to submit return and central assessment copies for the assessment years 1950-51 to 1958-59. THE returns for the assessment years 1957-58 and 1958-59 were sent on the 13th January, 1960. It was pointed out in the covering letter that the income-tax assessments for these years were not yet completed. On the 25th January, 1960, the petitioner received another letter dated the 23rd January, 1960, from respondent No. 1, alleging that the petitioner had failed to submit the returns for the years 1950-51 to 1958-59, and asked the petitioner to show cause in writing why the assessments for these years should not be completed summarily. Cause was shown by the petitioners letter dated the 24th February, 1960. THE petitioner was reminded to submit the returns for the years 1950-51 to 1956-57, by letter dated September 12, 1960. By letter dated November 2, 1960, the petitioner was asked to appear before the Agricultural Income-tax Officer on the 23rd November, 1960, in connection with the assessments for the years 1950-51 and onward and on that date, the petitioners accountant appeared before the Agricultural Income-tax Officer and pointed out that no notice under section 19 (2) or under section 30 of the Act was served in respect of the assessment years 1950-51 to 1956-57. On the 22nd February, 1961, the petitioner was asked to produce certain documents mentioned in the letter, and on March 1, 1961, the petitioner enquired under which provision of the Act, the demand to produce the said documents was made. On the 25th June, 1961, the petitioner received an assessment order dated June 19, 1961, in respect of the assessment year 1951-52 made under section 20 (4) of the Act, together with a notice of demand under section 23 of the Act for payment of Rs. 2,573.50 nP. as agricultural income-tax. This order of the 19th June, 1961, has been challenged by the petition numbered as Civil Rule No. 238. Civil Rule No. 239 of 1961 arises out of a petition by which the agricultural income-tax assessed under section 20 (4) of the Act for the assessment year 1952-53 has been challenged. Civil Rule No. 240 of 1961 arises out of a petition by which the assessment order dated June 19, 1961, in respect of the assessment year 1953-54 has been challenged. Civil Rule No. 241 of 1961 relates to the assessment made on the 19th June, 1961, for the assessment year 1954-55. Civil Rule No. 242 of 1961 relates to the assessment made on the 19th June, 1961, for the assessment year 1955-56. The main point urged by the petitioners in all these petitions is that unless the individual notice under section 19 (2) of the Act is served on the assessee, no best judgment assessment can be made under section 20 (4) except by proceedings under section 30 of the Act. No action was taken in the present case under section 30 of the Act. It is urged that an assessment can be made after due notice under section 19 (2) or by initiating proceedings under section 30 of the Act. Section 19 (2) requires that an individual notice be served in the financial year. If, however, no notice is served under section 19 (2), proceedings under section 30 can be initiated by a notice under section 19 at any time within there years of the end of that financial year. As no such notice was served in the present case within the period specified under section 30, the assessment under section 20 (4) was without jurisdiction. It is convenient to refer to certain provisions of the Act to appreciate the point raised by the counsel for the petitioners. Section 2 (a) (2) defines "agricultural income", meaning any income derived from land by agriculture. The Explanation to this section lays down that agricultural income derived from such land by the cultivation of tea means that portion of the income derived from the cultivation, manufacture and sale of tea as is defined to be agricultural income for the purposes of the enactments relating to Indian income-tax. Section 3 is the charging section. The proviso to section 8 lays down that in cases of agricultural income from cultivation and manufacture of tea, the agricultural income from cultivation and manufacture of tea, the agricultural income for the purposes of the Act shall be deemed to be that portion of the income from cultivation, manufacture and sale which is agricultural income within the meaning of the Indian Income-tax Act and shall be ascertained by computing the income from the cultivation, manufacture and sale of tea as computed for Indian income-tax from which shall be deducted any allowances by this Act authorised in so far as the same shall not have been allowed in the computation for the Indian Income-tax Act.
(3.) SECTIONS 19, 20 and 21 read as under : "19. (1) The Agricultural Income-tax Officer shall, on or before the first day may or for the year commencing 1st April, 1939, or any later day notified by Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every person whose agricultural income exceeds the limits of taxable income prescribed in section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year : Provided that the Agricultural Income-tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or class of persons; (2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial year the Agricultural Income-tax Officer may serve in that financial year, a notice in the prescribed form upon him requiring him to furnish, within the prescribed period, a return in the prescribed form and verified in the prescribed manner setting forth his total agricultural income during the previous year. (3) If any person has not furnished a return within the time allowed by or under sub-section (1), or sub-section (2) or, having furnished a return under either of those sub-sections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made and any return so made shall be deemed to be made in due time under this section. 20. (1) If the Agricultural Income-tax Officer is satisfied that a return made under section 19 is correct and complete, he shall assess the total agricultural income of the assessee, and shall determine the sum payable by him on the basis of such return. (2) If the Agricultural Income-tax Officer has reason to believe that a return made under section 19 is incorrect or incomplete, he shall serve on the person who made the return a notice requiring him, on the date to be specified therein, either to attend at the office of the Agricultural Income-tax Officer or to produce or to cause to be there produced any evidence on which such person may rely in support of the return. (3) On the day specified in the notice under sub-section (2) or as soon afterwards as may be, the Agricultural Income-tax Officer after hearing such evidence as such person may produce and such other evidence as the Agricultural Income-tax Officer may require on specified points, shall be an order in writing, assess the total agricultural income of the assessee and determine the sum payable by him on such assessment : Provided that the Agricultural Income-tax Officer shall not require the production of any accounts relating to a period more than three years prior to the previous year. (4) If the principal officer of any company or other person fails to make a return under sub-section (1) or sub-section (2) of section 19, as the case may be, or, having made the return, fails to comply with all the terms of the notice issued under sub-section (2) of this section, or to produce any evidence required under sub-section (3) of this section, the Agricultural Income-tax Officer shall make the assessment to the best of his judgment, and determine the sum payable by the assessee on the basis of such assessment :- Provided that before making such assessment the Agricultural Income-tax Officer may allow the assessee such further time as he thinks fit to make the return or comply with the terms of the notice or to produce the evidence...... 21. Where an assessee, or in the case of a company the principal officer thereof, within one month from the service of a notice a demand issued as hereinafter provided satisfies the Agricultural Income-tax Officer that he was prevented by sufficient cause from making the return required by section 19 or that he did not receive the notice issued under sub-section (2) of section 19 or sub-section (2) of section 20 of that he had not a reasonable opportunity to comply or was prevented by sufficient cause from complying with the terms of the last mentioned notices, the Agricultural Income-tax Officer shall cancel the assessment and proceed to make a fresh assessment in accordance with the provisions of the section 20." Section 30 reads as follows : "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 or has been the subject of undue relief under this Act, the Agricultural Income-tax Officer may, at any time within three years of the end of that financial 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-section (2) of section 19, 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 : 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 : Provided further that when the income, profits or gains concerned are agricultural income, profits or gains liable to assessment for a year ending prior to the commencement of this Act, or where the assessment made or to be made is an assessment made or to be made on a person deemed to be the agent of a non-resident person, this sub-section shall have effect as if for the period of three years a period of one year were substituted." Section 43 (2) (a) lays down that : "An assessee may, on receipt of the first notice served on him under sub-section (2) of section 19, apply to the Agricultural Income-tax Officer by whom such notice is served to be assessed at his usual place of residence or at the place where the accounts relating to his agricultural income are kept, if either of such places is situated in the State of Assam, and such Agricultural Income-tax Officer may pass an order that the assessee shall be assessed at the place specified in the application, the said place being situated in the State of Assam, or refer the matter to the Assistant Commissioner of Agricultural Income-tax, whose decision shall be final." The counsel for the assessee has referred to sections 21 and 43 (2) (a) to show that the issue of notice under section 19 (2) confers a valuable right on the assessee. Under section 21, the Agricultural Income-tax Officer is bound to cancel an assessment if no notice under section 19 (2) had been served and under section 43 (2) (a), as soon as a notice is served on the assessee under section 19 (2), he gets a right to choose his own forum for the assessment. In case no notice is issued under section 19 (2), the assessee acquires a valuable right to get the assessment cancelled and loses his option to get the assessment done at the place and by the Agricultural Income-tax Officer of his own choice. It is urged that these two sections show that the condition precedent for the assessment is the service of a notice under section 19 (2). It is further argued that the assessment proceedings against an individual assessee commence not by issue of general notice under section 19 (1), but by service of a notice under section 19 (2). It may be that in pursuance of a general notice under section 19 (1) the assessee may file a return and if once the return has been filed, even though in pursuance of a general notice, the proceedings for assessment commence, and it does not terminate unless the assessment is completed. This reasoning will not apply to a case where no return has been filed in pursuance of a general notice. Merely by issuing a general notice under section 19 (1), no assessment proceedings can commence against an individual. The question thus of completing the assessment will not arise in cases where no return has been filed and proceedings for assessment have not commenced. Under section 20, clause (4), it is urged that power is given to the assessing authority to make a best judgment assessment. This is a penal provision, which can only be invoked if the assessee does not file a return on a notice being issued under section 19 (2). The question of making a penal assessment will not arise in a case where it is not obligatory for an assessee to file a return. It is urged that if section 20 (4) is interpreted as suggested by the Advocate-General in his reply, the effect will be that the assessing authority can, at any time, quietly sitting in his office, assess an assessee without giving him any opportunity to prove that his income is not liable to assessment. The proviso to section 20 (4) is alleged to be mandatory. It is, however, further contended that the notice required under the proviso can be issued only within three years of the expiry of the financial year. If power is given under section 20 (4), after giving the required notice under the proviso, to assess at any time and no period is fixed for making such an assessment, the provisions of section 30 will become redundant. The assessing authority will have recourse to section 20 (4) even in cases where section 30 is attracted. It is argued that section 20 (4) has to be read along with section 30. ;