The Revenue Is The Petitioner In The Instant Other v. T.p. Elias[1] And Deputycommissioner Of Agricultural Income Tax V. T.k.s.dinakaran[2

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942 OTC.No.10 OF 2013 AGAINST THE ORDER/JUDGMENT IN AITA 6/2012 DATED 07-08-2012 OFS.T.A.TRIBUNAL,ADDITIONAL BENCH,KZD. PETITIONER/S: STATE OF KERALA REPRESENTED BY THE DEPUTY COMMISIONER(LAW), COMMERCIAL TAXES, REVENUE TOWER, 9TH FLOOR,ERNAKULAM,KOCHI - 682 011. BY SPL GOVERNMENT PLEADER SHAMSUDHEEN V K RESPONDENT/S: M/S.CHEMBRA PEAK ESTATE LTD.NO.2, 1ST FLOOR, 5TH MAIN, RMS LAYOUT, POST OFFICE ROAD, SANJAY NAGAR, BANGALORE PIN - 560094. R1 BY ADV. SMT.DEVI.C.HARIDASR1 BY ADV. SRI.V.KRISHNA MENONR1 BY ADV. SRI.E.K.MADHAVANR1 BY ADV. SMT.J.SURYAR1 BY ADV. SMT.P.VIJAYAMMA OTHER PRESENT: SRI SAMSUDHEEN V K-GP THIS OTHER TAX CASES HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURTON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T Dated this the 1st day of March 2021 S.V. Bhatti, J. Heard Special Government Pleader Mr.Shamsuddin andAdvocate Mr.E.K. Madhavan for respondent. 2.The Revenue is the petitioner in the instant Other Tax Case. The Revenue challenges the order of AppellateTribunal dated 07.08.2012 in AITA No.6/2012. The issue arisesunder Agricultural Income Tax Act, 1991. A Division Bench,upon noticing divergence of views expressed by two DivisionBench judgments reported in Deputy Commissioner of Sales Tax(Law), Board of Revenue (Taxes), Ernakulam v. T.P. Elias[1] and DeputyCommissioner of Agricultural Income Tax v. T.K.S.Dinakaran[2], 1(1993) 90 STC 252(1998) 232 ITR 164 Ker.2(1998) 232 ITR 164 Ker. referred the issue for resolution by a Full Bench of this Court.The Full Bench, through order dated 30.11.2018, held as follows: “19.However, it is indubitable that the provisions of Section41(1) of the AIT Act are worded differently. In this Section, theAssessing Authority has been vested with the power to re-opena concluded assessment and to make a re-assessment “if or anyreason” income has escaped assessment or has been assessed ata too low rate. Obviously, therefore, there are no fetters to thisexercise of power, as in the case of Section 147 of the IncomeTax Act and resultantly, these two provisions cannot beconstrued to be in .pari materia 20.Further, the semantic difference in the use of the phrases“has reasons to believe” and “if for any reason” is alsoconspicuous because in the former, the Assessing Authoritymust obtain a reason to believe from sources that are extrinsic,before he can proceed to re-assess; whereas in the case of theAIT Act, he can do it for any reason, perspicuously to meaneven his own change of opinion. These phrases in these twoActs have been chosen carefully by the nomothetic bodies andthe difference in the legislative tools adopted in the saidexercise is manifest. Therefore, we cannot approve thesubmissions of the assessee that the words in Section 147 of theIncome Tax Act must govern the manner of interpretation of O.T.C. No.10/2013 Section 41 of the AIT Act. 21.In any event of the matter since, as we have already saidabove, the Hon'ble Supreme Court has interpreted a similar, ifnot identical, provision of the Bihar Agricultural Income-taxAct and since that judgment concededly still holds the field, weare bound by it and judicial discipline dictates that this Courtshould follow it, without having to search for external aids forinterpretation of Section 41 of the AIT Act, when a judgment ofthe Hon'ble Supreme Court on exactly the same point isavailable. 22.In the afore circumstances, we answer this referenceholding that T.P.Elias (supra) lays down the correct law withrespect to Section 41 of the AIT Act and that T.K.S.Dinakaran(supra), having been delivered without noticing the bindingprecedent of the Hon'ble Supreme Court in Maharajadhiraj(supra), is per incuriam and therefore, not deserving of beingfollowed as a precedent.” 22.In the afore circumstances, we answer this referenceholding that T.P.Elias (supra) lays down the correct law withrespect to Section 41 of the AIT Act and that T.K.S.Dinakaran(supra), having been delivered without noticing the bindingprecedent of the Hon'ble Supreme Court in Maharajadhiraj(supra), is per incuriam and therefore, not deserving of beingfollowed as a precedent.” 3.The counsel appearing for the parties stated that the issue is answered in favour of the Revenue. In other words, the view taken by the Tribunal in the order under revision iscontrary to the dictum laid down by the Full Bench. 4.We have taken note of the ratio laid down by the FullBench in the order dated 30.11.2018 referred to above and byfollowing the Full Bench order the issue is answered in favour ofthe Revenue. Hence, the order under revision is set aside. The OTC isallowed accordingly. No order as to costs. Sd/-S.V.BHATTIJUDGE Sd/- BECHU KURIAN THOMASJUDGE jjj O.T.C. No.10/2013 APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER DATED 30.07.2009 PASSED BY THE INSPECTING ASSISTANT COMMISSIONER, KALPETTA ANNEXURE BTRUE COPY OF THE NOTICE DATED 02.05.2011 ISSUED BYTHE INSPECTING ASSISTANT COMMISSIONER ANNEXURE CTRUE COPY OF THE REVISED ASSESSMENT ORDER DATED 01.06.2011 ANNEXURE DTRUE COPY OF THE ORDER DATED 16.03.2012 OF THE DEPUTY COMMISSIONER (APPEALS) KOZHIKODE IN AIT 6/2011 ANNEXURE ETHE ORDER OF THE APPELLATE TRIBUNAL IN AITA 6/2012 DATED 07.08.2012.