Kerala High Court
Vally Estate vs Addl. Agricultural Income-Tax Officer ... on 28 January, 1994
JUDGMENT T.L. Viswanatha Iyer, J.
1. The order of assessment to tax under the Agricultural Income-tax Act, 1950 ("the 1950 Act"), made on the petitioner for the assessment year 1980-81, was taken up in suo motu revision under Section 34 of the Act by the Commissioner of Agricultural Income-tax, Thiruvananthapuram ("the Commissioner", for brevity). After hearing the assessee-petitioner, the Commissioner passed an order dated March 30, 1991, a copy of which is exhibit P-10, revising the order of assessment. Being aggrieved by the said order, the petitioner applied for reference to this court for its opinion of certain questions of law stated to arise therefrom under Section 60 of the 1950 Act. A copy of the application is exhibit P-11 dated August 9, 1991. By that time, the 1950 Act had been repealed and replaced by the Kerala Agricultural Income-tax Act, 1991 ("the 1991 Act"), which came into force on April 1, 1991. Section 76 of the 1991 Act corresponds to Section 34 of the 1950 Act and confers power on the Commissioner to exercise suo motu power of revision in respect of orders passed by the subordinate authorities which are considered prejudicial to the Revenue. But wide departure was made in the matter of the remedy available to an aggrieved assessee against the order in revision of the Commissioner. While under the 1950 Act he had to seek a reference to this court for its opinion of any questions of law arising out of the order of the Commissioner, he was afforded, by Section 78 of the 1991 Act, the remedy of approaching this court directly by way of a revision petition on the ground that the Commissioner had either erroneously decided or failed to decide any question of law. Since the 1950 Act stood repealed by the time the application for reference was made, the Commissioner entertained doubt about its maintainability and eventually, after affording an opportunity to the petitioner to be heard, he rejected the application as not maintainable by the order, exhibit P-14, dated November 9, 1991. According to him, the petitioner's remedy was to approach this court by way of revision under Section 78 of the 1991 Act. The question is whether this view of the Commissioner is correct. The petitioner questions this view and reiterates that the remedy available to him was that under Section 60 of the 1950 Act, the revisional order under Section 34 having been passed on March 30, 1991, before the 1991 Act came into force.
2. Section 99(1) of the 1991 Act repeals the 1950 Act, but the proviso thereto states that the repeal shall not affect the previous operation of the 1950 Act, or any right, title, obligation or liability already acquired, accrued or incurred thereunder and, subject thereto, anything done or any action taken, including any order passed in the exercise of any power conferred by or under the 1950 Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under the 1991 Act as if this Act were in force on the date on which such thing was done or action was taken. As to what is the proper remedy of the petitioner has to be decided with reference to this repealing provision. Section 99(1) is clear and specific that the repeal will not affect the previous operation of the 1950 Act or any right, obligation or liability already acquired, accrued or incurred thereunder. It is only subject to this that anything done or any action taken under the said Act is deemed to have been done or taken under the 1991 Act.
3. So far as the order, exhibit P-10, which was passed on March 30, 1991, is concerned, the remedy of the petitioner under the 1950 Act was to move for reference to this court of any questions of law arising therefrom under Section 60 of the said Act. That remedy stood attracted as soon as the order exhibit P-10 was passed, on March 30, 1991, when the law in force was the 1950 Act. In other words, the remedy of seeking a reference to this court under Section 60 of the 1950 Act accrued to the petitioner on March 30, 1991, with a corresponding right on the respondent not to have the order challenged except in accordance with the procedure prescribed by the 1950 Act. This right of either party which had accrued on the. order being passed, is not taken away by anything stated in the repealing provision, inasmuch as the deeming provision referred to earlier in the proviso to Section 99(1) is specifically subject to the rights or obligations accrued or incurred under the 1950 Act.
4. In the case of a repeal and re-enactment, the line of enquiry is not whether the new Act keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. (State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84 and Indira Sohanlal v. Custodian of Evacuee Property, AIR 1956 SC 77). The proviso to Section 99(1) of the 1991 Act does not evince any intention to affect the rights and liabilities accrued under the 1950 Act. On the other hand, as mentioned earlier, the fiction created by the latter part of the proviso is clearly subject and subservient to the rights and obligations accrued or incurred under the 1950 Act. The remedy of the petitioner in relation to the order, exhibit P-10, was thus under Section 60 of the 1950 Act, as rightly invoked by them. I have therefore, no hesitation in holding that the order of the Commissioner, exhibit P-14, is unsustainable in law and against the plain terms of Section 99(1) of the 1991 Act.
5. Accordingly, I quash exhibit P-14. The second respondent, Commissioner, is directed to consider and dispose of the reference application, exhibit P-11, afresh in accordance with the provisions of Section 60 of the 1950 Act with all expedition and at any rate within a period of three months from the date of receipt of a copy of this judgment.
6. The original petition is allowed as above. No costs.