TMI Blog1996 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ns filed by the petitioners. The Commr. of Agrl. IT as per exhibit P-2 order set aside the assessments for the years 1981-82 and 1982-83 and remanded the case to the assessing authority for fresh disposal. Thereafter, the petitioners have filed reference applications under s. 60(2) of the Act. Those applications were disposed of by exhibit P-3 order declining to refer the question to the High Court. Then the petitioners filed O. P. Nos. 7522 of 1990 and 8143 of 1990 under s. 60(3) of the Act. The said applications were disposed of by the Division Bench of this Court on 4th June, 1992. The Division Bench refused to entertain the reference in view of the decision of the Full Bench of this Court in Jacob vs. Addl. Deputy CAIT [1985] 49 CTR (Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials available at the time of the original assessment are concerned. In order to augment the first contention, counsel has brought to my notice the requirements stipulated under s. 35(1) of the Act. The relevant portion of the said provision is extracted hereunder : "(1) If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agrl. ITO may, at any time, within (five years) of the end of that year, serve on the person liable to pay the tax or, in the case of a company, on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub-s. (2) of s. 17 and may proceed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prescribed form requiring such person to furnish within such period not being less than 30 days as specified in the notice, a return in the prescribed form. That would indicate if an action under s. 35 is proposed to be initiated, a notice under s. 35(1) incorporating the requirements provided under s. 17(2) shall be served. What is significant in sub-s. (2) is that the notice must require the person concerned to furnish return within a period of 30 days. So a period of 30 days shall be given to the assessee for complying with the notice under s. 35(1). In other words, if the requirements as contemplated under sub-s. (2) of s. 17 are not complied with while issuing notice under s. 35, it cannot be said that there is compliance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. If no notice is issued or if the notice issued is shown to be invalid then the proceedings taken by the ITO without a notice or in pursuance of an invalid notice would be illegal and void." The law laid down by the Supreme Court can be applied without any demur in the facts of the present case. There is no dispute in this case that the notices were issued under sub-s. (1) of s. 35. However, the petitioner in O. P. No. 14186 of 1992 has been granted only five days for replying to the notice. The petitioner in O. P. No. 14208 of 1992 has been granted only seven days. In other words, the requirement insisted upon under s. 17(2) of the Act has not been complied with and therefore the notice issued under sub-s. (1) of s. 35 can only be an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officer to issue notice in compliance with the provisions contained in sub-s. (1) of s. 35 r/w sub-s. (2) of s. 17. The requirements contained in those provisions cannot be dispensed with or abrogated or obliterated by pleading that after the issue of notice sufficient time had been given to the assessee. I am fortified in so observing because what is involved is the question of jurisdiction. Only when there is a valid notice, the officer can assume jurisdiction to invoke the power under s. 35. In the presence of an invalid notice, no such power can be assumed. In fact what has happened in this case is that the power has been wrongly assumed and the proceedings taken in pursuance of such assumption of power are clearly unauthorised and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory provisions as laid down under s. 35 of the Act and so they were found to be irregular. When the assessments are found to be irregular, the only way open before the Commr. Agrl. IT is to set aside the order because the assumption of power under s. 35 is erroneous. Instead of setting aside the orders, the Commissioner has remanded the case for fresh disposal. That is clearly an ineffective action as far as the power of the Commr. Agrl. IT is concerned. In exhibit P -2 order, the Commissioner observed that "when the escape was noticed the assessing authority issued a notice. This is not correct". That also indicates that the proceedings initiated by the officer is clearly erroneous. In view of the discussion hereinabove, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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