Raghu Bar Dayal, J. - (1.) he Travancore Rubber and Tea Co., Ltd., hereinafter called the company, and one of its directors and members, have filed these petitions praying for a declaration that the Agricultural Income Tax (Amendment) Act, 1961 (Act IX of 1961), hereinafter called the Amendment Act, enacted by the Kerala State Legislature, is null and void and for the issue of appropriate orders to the respondents viz., the State of Kerala and the Assistant Commissioner of Agricultural Income-tax, Kottayam, restraining them, their agents and servants from enforcing or acting upon the provisions of the aforesaid Amendment Act against the company and for refund of tax illegally assessed and collected from the company.
(2.) The business of the company consists of owning and managing rubber and tea estates situate in Kerala State. The company was assessed to the agricultural income-tax under the Agricultural Income-Tax Act, 1950 (originally the Travancore-Cochin Agricultural Income-tax Act XXII of 1950, amended as the Agricultural Income-tax Act, 1950 by Act VIII of 1957 of the Kerala Legislature), hereinafter called the Agricultural Income-tax Act, with respect to its income derived from its rubber plantations in the accounting years 1950, 1951 and 1952, corresponding to the assessment years 1951-52, 1952-53 and 1953-54. The assessing authority did not deduct the expenses incurred in the upkeep and maintenance of the immature rubber plants in the assessment of the income for the assessment year 1953-54, but allowed it in the assessment with respect to the other two years. At the request of the Income-tax Department and of the company, cases were referred to the High Court of Kerala in accordance with S. 60 of the Agricultural Income-tax Act. The High Court decided against the company holding that such expenditure was not to be deducted in computing the agricultural income. The company came to this Court against the order of the High Court and this Court held, by its judgment dated December 15, 1960 (Travancore Rubber and Tea Co., Ltd. v. Commissioner of Agricultural Income-tax Kerala, (1961) 3 SCR 279 ) that such expenses were allowable under S. 5(j) of the Agricultural Income-tax Act in computing the assessable income. Thereafter, the Governor of Kerala State promulgated an Ordinance which was subsequently repealed by the Amendment Act of 1961. The Amendment Act was deemed to have come into effect from April 1, 1951. By its S. 2, Explanation 2 was added to S. 5 of the Agricultural Income-tax Act. That Explanation reads: "Nothing contained in this section shall be deemed to entitle a person deriving agricultural income to deduction of any expenditure laid out or expended for the cultivation, upkeep or maintenance of immature plants from which no agricultural income has been derived during the previous years." By. S. 3, assessments previously made on the basis that such expenses were not to be allowed in computing agricultural income were deemed to be valid.
(3.) On February 22, 1961, the Company on the basis of the judgment of this Court, wrote to the Income-tax Commissioner for refunding the excess tax which had been realised. It got the reply, dated June 20, 1961, that its claim for refund was not maintainable so long as the orders of assessment were not varied or reversed by any competent authority and that the claim was also not tenable in view of the provisions contained in the Amendment Act.;