Bapna, J. - (1.) THESE four references have been made by the Appellate Tribunal to the High Court under sec. 86 of the Rajasthan Agricultural Income-tax Act, 1953. The facts are similar and raise a single question of law and they are, therefore, disposed of by one judgment.
(2.) IN reference No. 21, the Agricultural INcome Tax Officer (AITO) Jaipur computed the assessable agricultural income of the assessee Rawal Sangram Singh of Samod as Rs. 1,06,884/15/9, and thereafter issued a demand notice on 29th September, 1954 in form AIT Form No. 4, asking the assessee to pay the tax by 15th October, 1954. Para 3 of the Notice contained an offer to the assessee in the following words: - ". . . . . if you want to pay this amount by instalments not exceeding four in number, you should apply within the time allowed for making the payment to me for necessary permission. " An application was made on 11th October, 1954, by Shri U. S. Lekhi, authorised representative of the assessee, saying that, the assessee being desirous of taking advantage of the offer made by the A. I. T. O. in para 3 of the notice of demand had instructed him (authorised representative) to request the A. I. T. O. to allow him to make the payment of the tax in four equal monthly instalments and, since the amount involved v. as heavy, to allow the first instalment to fall due on 15th November, 1954. On this application an order was passed by the A. I. T. O. in the following words on 13th October, 1954: - ''shri Lekhi is prepared to arrange payment in two instalments one by the end of this month and next by the end of the following month. These instalments are allowed. " Shri U. S. Lekhi acknowledged this order by writing the following words below this order: - "noted with thanks. " Some time later on the same date, an application was made by Shri U. S. Lekhi that he desired to bring on record the fact that immediately on the A. I. T. O. 's agreeing to allow two instalments to the assessee he, requested the A. I. T. O. to allow him to withdraw the application when the provisions of sec. 61 (2) of the Act were pointed out to him. It was stated that the assessee was tempted to apply for instalments in view of the unconditional offer of payment by instalments contained in the demand notice otherwise the assessee was not prepared to waive his right of appeal. It was Anther stated that at the very time that the application for instalments was granted the authorised representative had pointed out to the A. I. T. O. that the assessee was not prepared to waive his right of appeal and would prefer to withdraw the application. The A. I. T. O. passed an order that the instalments had been fixed as agreed upon and that under sec. 61 (2) the right of appeal had been waived, and that there is no provision of law for allowing withdrawal of such an application. An appeal against the assessment order was presented. Before the Assistant Commissioner on 23rd October, 1954. The Commissioner rejected the appeal on 11th November, 1954, on the ground that the appellant had waived his right of appeal, under sec. 61 Clause 2 of the Act. A second appeal was filed before the Appellate Tribunal and the learned Judge of the Appellate Tribunal was of opinion that there was no conscious decision to abandon the right of appeal in the circumstances mentioned above, and the assessee could not be deemed to have waived his right of appeal. The appeal was accep-ted, and the order of the Assistant Commissioner was set aside and he was directed to readmit the appeal and rehear it on the merits. This order was passed on 10th May, 1956. ' On application by the Additional Commissioner of Agricultural Income Tax, the present reference, has been made, "whether on the facts and circumstances of the case, the assessee could be deemed, within the meaning of Proviso' 1 of sec. 61 (2) of the Rajasthan Agricultural Income Tax Act, 1953, to have waived all his rights of appeal under the Act. In reference No. 22 of 1956, the A. I. T. O. assessed the taxable agricultural income of the assessee Thakur Shiv Singh at Rs. 13,904/6/-: and thereafter issued a demand notice as in reference No. 21. On 11th October, 1954, an application was made by Shri U. S. Lekhi, authorised representative of the assesseeas in other case,, requesting that the amount may be allowed to be paid in instalments. The A. I. T. O. allowed instalments, and the authorised representative wrote on it 'noted with thanks'. On 13th October, 1954, he submitted an application to the A. I. T. O. requesting that he desired to bring on record the fact that immediately after dealing with, the, application, the A. I. T. O. ' pointed out the implication by reference to sec. "61 (2),' and the authorised representative wanted to withdraw the application, since the assessee was not prepared to waive his right of appeal. The request was rejected on the ground that there was no provision in law to allow withdrawal of such an application. The assessee filed an appeal against the order of assessment which was rejected on the ground that the right of appeal under the Act had been waived. On second appeal the learned Judge of the Appellate Tribunal observed that there was no conscious decision to abandon the right of appeal, and he allowed the appeal, set aside the order of the Assistant Commissioner and directed that the appeal should be heard and disposed of on merits. On motion by the Additional Commissioner of Agricultural Income Tax the same question as in Reference No. 21 has been referred : - "whether on the facts and circumstances of the case the assessee could be deemed, within the meaning of Proviso 1 of Sec. 61 (2) of the Rajas- than Agricultural Income Tax Act, 1953, to have waived all his rights of appeal under the Act?" In reference No. 23 of 1956, the taxable income of Thakur Jaswant Singh was assessed at Rs. 24,622/5/-, for which a demand notice was issued. On 11th October, 1954 in form 4 A. I. T. an application for instalments as in the other case was presented by Shri U. S. Lekhi, on behalf of the assessee. This was allowed. On 13th October, 1954 Mr. Lekhi made an application that he wanted to bring on record that on coming to know the implication of such , an application, he requested permission to withdraw his application but this was not allowed to be done. The assessee thereafter filed an appeal, which was rejected on the ground that the assessee will be deemed to have waived his rights of appeal. On second' appeal the learned Judge of the. Appellate Tribunal held that there was no conscious decision to abandon the right of appeal, and he set aside the order of the first appellate court and directed that the appeal be decided on merits. On motion by the Additional Commissioner, Agricultural Income-Tax, the same question, as was referred to in the other two cases, has been referred. In reference No. 24 of 1956, the taxable agricultural income of the assessee Bhopal Singh was assessed at Rs. 20,658/13/6, and the demand notice of the tax was issued in form 4 A. I. T. Mr. Lekhi filed an application for permission to pay the tax by instalments, on 11th October, 1954. It was allowed. On 13th October, Mr. Lekhi submitted an application, as in other cases, for permission to withdraw the application, but this was rejected. The assessee filed an appeal, which was rejected on the ground of waiver. The second appeal was allowed on the ground that there was no conscious decision to withdraw the appeal and the case was remanded for decision on merits. On motion by. the Additional Commissioner, Agricultural Income Tax, the same question as referred to in the other three cases, has been referred for decision. It may be mentioned that in the case of Rawal Sangram Singh, the full amount of tax demanded was deposited in lump sum on 18th October, 1954, and the permission to pay the tax in four instalments was not availed of. In the case of Shri Shiv Singh, the entire tax was paid on 19th October, 1954, and the permission to give in instalments was not availed of. In the case of Thakur Jaswant Singh, a notice was issued on 2nd February, 1955 by the Agricultural Income Tax Department, "whereas you have not paid a sum of Rs, 2,356/3/-, for the year 1954-55, on the prescribed date, that is 15th October, 1954, in accordance with the notice of demand served on you on 25th September, 1954, you are hereby informed that a penalty of Rs. 25/- has been imposed upon you under S. 62 of the Rajasthan Agricultural Income Tax Act, 1953. You are here-by required to pay the amount on or before 7th February, 1955. " In the case of Bhopal Singh, the tax was deposited in lump sum on 18th October, 1954, without taking advantage of the permission to pay by instalments. The following facts are, therefore, common to all these four applications, that each one of the assessees was assessed to certain agricultural income-tax and the demand notice was issued to each one of them, para 3 whereof was as under: - "you are hereby required to pay the amount on or before the 15th October, 1954, to the Bank of Jaipur Ltd. , when you will be granted a receipts A challan is enclosed for the purpose: If you want to. pay. this amount by instalments not exceeding four in number, you should apply within the time allowed for making the payment to me for necessary permissions. "
(3.) THE authorised representative of each one of the assessees was Mr. U. S. Lekhi and he made an application for permission to pay the amount by instalments by reference to the advantage offered in para three of the notice of demand. Each of these applications were allowed on 13th October, 1954, though there was some, variation in the number of instalments, prayed for and the number of instalments allowed. THE attention of Mr. Lekhi then seems to have been drawn to proviso to sec. 61 (2), and either the assessee may have given instructions or Mr. U. S. Lekhi himself realised the onerous consequences of being allowed to pay the tax by instalments and he immediately thought that it was not in the interest of the assessee to waive the right of appeal and he accordingly made an application in each of the four cases that each of the assessees did not want the favour of being permitted to pay the tax by instalments, and thereby to waive the right of appeal and requested that the assessee should be permitted to withdraw the application, for permis-sion to pay the tax by instalments. This request was turned clown by the A. I. T. O. Sec. 61, Clause (1) speaks of the time within which the tax is to be paid. The second Clause is relevant in the present case, and is as follows: - "if an assessee makes an application within the time mentioned in the notice of demand in sec. 47 for being allowed to pay the tax due by instalments, the Agricultural Income-tax Officer may in his discretion, by order in writing allow the assessee to pay the tax due in instalments not exceeding four in number at such intervals as the said officer may fix in his discretion: Provided that, if as a result of an application may by the assessee, the Agricultural Income-tax Officer allows the assessee to pay the tax due in instalments, the assessee shall be deemed to have waived all his rights of appeal under this Act. " The first point for consideration is whether an assessee who makes an application for being allowed to pay the tax by instalments cannot change his mind when he comes to know that the result of being permitted to pay by instalments would be that he will have no right to file an appeal. The proviso in our opinion would come into play if the assessee wishes to take advantage of the permission to pay by instalments. If he wishes to change his mind and informs of it to A. I. T. O. within the original period allowed in the demand notice, there is nothing in the section which may force him to pay by instalments only. In the present case each one of the demand notices mentioned 15th October, 1954 as the time by which the tax was to be paid. The Income-tax Officer was informed on 13th October, 1954 that the application for instalments was made under misapprehension and the assessee did not want to pay the amount by instalments. If the assessee paid the tax within the time originally allowed there was an end of it, but if he did not pay the tax within that time, the assessee made himself liable to pay the penalty under sec. 62 of the Act. This alone is sufficient for the disposal of this reference. There is also another aspect of the case. The notice of demand while mentioning that an assessee if he liked could apply for payment by instalments, did not say that if the instalments were applied for and granted the right of appeal will be deemed to have been lost. While the attention of the assessee was drawn to Clause (2) of sec. 61, his attention was not drawn to the proviso to that sub-section. Each one of the assessees may have believed (the allegation is that they did believe) that the offer was without any strings. The assessees and his authorised representative may have thought that it was a genuine offer to accommodate the assessee with no apparent risk or detriment to his other rights whatever they may be. As stated in Kerr on Fraud and Mistake (Seventh Edition) at page 41, that "a representation may be false by reason not only for positive mis-statements contained in it, but also by reason of intentional suppression whereby the information it gives assumes a false colour, giving a false impression, and leading necessarily, or almost necessarily, to an erroneous conclusion. " At page 43, the learned author goes on to say that "a representation though true to) the letter may be in substance a mis-representation. There is a misrepresentation if a statement is calculated to mislead or throw the person to whom it is made off his guard, though it may be literally true. It is not enough to use words which, read with caution and sifted to the bottom, might have given to the reader a clue to their meaning. The test is whether taking the whole thing together, there is a false representation". If a man states a thing partially, he may make a false statement as much as if he had misstated it altogether. Every word he says may be true, but if he leaves out something which qualifies it, he may make a false statement. It would be a case of mis-representation if a man represents not the whole of the facts, but only a portion, and omits what he ought to have known was a very material fact. It is an untruthful representation by reason of suppression and concealment of truth, not untruthful in the sense of direct falsehood, bu ;