M.C. Dsai, J. - (1.) This is case referred under section 24(4) of the Uttar Pradesh Agricultural Income Tax Act by the Revision Board at the assessees instance, the question requiring this courts answer being : Whether on the facts and having regard to the provisions of section 25 of the Act, the Board could on the 15th October, 1952, direct a fresh assessment to be made - The facts as they appear from the statement are as follows h: The gross agricultural income of the assessee is of more than one lakh of rupees and the Collector and not the Sub-divisional Officer is his assessing authority : vide section 14. Section 15(3) lays down that "in the case of any person whose total agricultural income is, in the opinion of the assessing authority, such amount as to render such person liable to payment of agricultural Income Tax in any years, he may be served in that year a notice in the proscribed form requiring such person to furnish within such period, not being less than thirty days as may be specified in the notice, a return in the proscribed form setting forth his total agricultural income during the previous years." If the assessing authority is satisfied that return made under section 15 is correct and complete it is to assess the agricultural income of the assessee and determine the tax payable by the person. If it finds the return to be incorrect or incomplete it should serve on the person a notice requiring him to attend its office or to produce evidence on a certain date and the it should pass an assessment order assessing the agriculture income and determining the tax payable by the person. If the person fails to make a return or fails to comply with the notice issued under sub-section (2) or to produce evidence under sub-section (3) of section 16 it is required to make the assessment to the best of its judgment. This is the gist of section 16. There is some difficulty in giving effect to the provisions of section 16(3) and 14(2). Who is an assessing authority depends upon the gross income but what is the gross income can be determined only when it is assessed under section 16 after the issue of a notice under section 15(3). The notice under section 15(3) is required to be issued by the assessing authority; it is not understood how, before it is known what the gross agricultural income of the assessee is going to be, it can be said whether a Sub-Divisional Officer is the assessing authority or the Collector and how without its being determined at this stage who is going to be the assessing authority a notice can be issued at all. However, in this case a notice under section 15(3) was issued by a Sub-Divisional officer of the assessment year 1356 Fasli. He found that the gross income of the assessee was of more than one lakh and still assessed him on May 14, 1949, though on the net amount of Rs. 72,000 and odd. On December 23, 1949, the Collector issued a notice contemplated by section 25 to the assessee stating that some income of his had remained un assessed. This provision reads as follows : "25. If for any reason any agricultural income has escaped assessment for any year the assessing authority may, at any time within one year of that year, serve on the person liable a notice and may upon service of such notice proceed to assess or reassess such income, and the provisions of this Act shall, so far as may be, apply according as if the notice were a notice issued under section 15(3) and (3B)." The assessee contested the notice and the Collector assessed him on June 9, 1950, on a certain additional income. He appealed to the Commissioner against the assessment order and on March 5, 1952, the Commissioner allowed the appeal, held that the assessment orders passed by the Collector on June 9, 1950, and by the Sub-Divisional Officer on May 14, 1949, were without jurisdiction, set them aside and ordered that the "whole case shall be reopened by the Collector and fresh assessment of the whole of the income for 1355 F. shall be made by the Collector after giving a notice to the assessee and after giving reasonable opportunity for production of evidence, if any, as required by section 16(2) and according to the provisions of law." The assessee went up in revision against this order and on October 15, 1952, the Revision Board held that the Commissioner had no jurisdiction to set aside the assessment order passed by the Sub-Divisional Officer on May 14, 1949, and that since it was without jurisdiction and the fact that it was so was brought to its notice, it should in exercise of its revisional jurisdiction set it aside, whole maintaining the order passed by the Commissioner, itself set aside the Sub-Divisional Officers assessment order as being without jurisdiction and directed that "fresh assessment will be made according to law." Since the Board passed the order more than six years after the end of the assessment year the question arose whether it could be passed at all or not.
(2.) In the connected case three questions have been referred to this court by the Revision Board, they being : 1. Whether on the facts of the case 60% of the income from shade trees of the tea garden for the peri Whether having regard to the provisions of section 25 of the Agricultural Income Tax Act, 1948, the Revision Board was entitled in law to entertain a revision application and direct fresh assessment thereon after the lapse of more than one year from the end of the assessment year (1356 Fasli which corresponds to the period July 1, 1948, to June 30, 1949) ? 2. Whether the applicant is entitled to set off losses determined under section 6(2)(b) against income arrived at under section 5 of the Act ? 3. Whether on the facts of the case 60% of the income from shade tress of the tea garden for the period April 15, 1948, to June 30, 1949, could be assessed as the applicants income - In question No, 3 "June 30, 1949," is obviously is mistake for June 30, 1948; the question before the Board was regarding income for the year ending June 30, 1948, and it had nothing to do with the period of July 1, 1948, to June 30, 1948. The question, therefore, will be answered in respect of the period April 15, 1948, to June 30, 1948, only. The facts giving rise to them are as follows : The gross income of the assessee is of more than one lakh of rupees. On July 22, 1949, the Collector passed an assessment order on certain income for the assessment year 1356 Fasli ending on June 30, 1949. The State made an application to him subsequently alleging that some income had escaped assessment and praying for proceedings under section 25. The Collector rejected the application. The State applied in revision to the Board against the assessment order dated July 22, 1949, and the revision application was allowed by the Board on September 18.9.1951 and it passed the following order : "The result is that the application is allowed, the assessment order is set aside and the case is remained for fresh assessment in the light of the observations made above." The assessee then applied to the Board for reference of the question whether it could order fresh assessment after the expiry of one year from the end of the assessment year but the Board rejected the application. He then applied to this court under section 24(4) and this court directed the Board to refer the case to it. The Board thereupon referred the case to this court. It did not frame proper questions in the beginning and this court called for a supplementary statement of the case and now the Board has referred the questions set out above.
(3.) There is only one question referred to this court in the instant reference and it is whether the Board could direct a fresh assessment to be made more than one year after the expiry of the assessment year. There could arise other questions such as whether the assessing authority referred to in section 25 is the assessing authority that had passes the original assessment order resulting in escape or may be a different assessing authority and whether which assessing authority is competent to issue a notice under section 25 depends on the amount of the escaped income or on the aggregate of the amounts of the income already assessed, if at all, and the escaped income. The original assessment order was passed by a Sub-Divisional Officer but the notice under section 25 was issued not by him but by the Collector. The Collector issued notice under section 25 on the ground that a net income of Rs. 7,000 and odd had escaped assessment; if the amount of the escaped income alone was to be considered in determining who can issue a notice under section 25, the Sub-Divisional Officer, and not the Collector, could issue it. Further, if once an assessment order was passed by an assessing authority only, it can issue a notice under section 25; again the notice in this case could have been issued only by the Sub-Divisional Officer. But if the law is that if an assessment order is passed by a Sub-Divisional Officer wrongly, i.e., without jurisdiction, a notice under section 25 can be issued by the Collector notwithstanding the fact that the amount of the escaped income is of less than one lakh of rupees, the notice was rightly issued by the Collector. None of these questions has, however, been raised on behalf of the assessee.;