Karnataka H.C : This petition coming up for preliminary hearing after notice to the respondent is disposed of by the following order, after hearing the counsel for the petitioner and also the counsel appearing for the Agrl. ITO, Madikeri, Kodagu District.

Counsel Appeared

G. Sarangan, for the Petitioner : M. R. Vanaja, for the Respondent

CHANDRAKANTARAJ URS, J.:

This petition coming up for preliminary hearing after notice to the respondent is disposed of by the following order, after hearing the counsel for the petitioner and also the counsel appearing for the Agrl. ITO, Madikeri, Kodagu District.

The petitioner is aggrieved by the demand notice issued by the respondent demanding a sum of Rs. 23,480 as tax due and payable for the asst. yr. 1978-79, i.e., for the accounting period ending with March 31, 1978. The demand notice undisputedly was pursuant to rectification order passed by the respondent on February 24, 1981, under s. 37 of the Karnataka Agrl. IT Act. The original assessment order for the asst. yrs. 1975-76, 1976-77 and 1977-78 was made by the respondent on December 16, 1978. In this petition, the petitioner is affected by the rectification made in respect of the accounting period 1977-78. The petitioner had filed his return for the relevant year, i.e., 1977-78, showing the income from coffee estimating at 72, 250 points at Rs.5.50 per point Thus, the income for that year from coffee was shown at Rs. 3,97,375. The return came to be accepted by the respondent by his order dated December 16, 1978, to which reference has already been made. However, he issued show cause notice bearing GIR No. 806/78-79 by which he proposed to rectify his order of December 16, 1978, in so far as it related to the accounting year 1977-78 in respect of coffee income. According to the respondent the total coffee income should have been worked out at Rs. 6.00 per point and not Rs. 5.50 per point as per the Coffee Board’s fixation of price per point at Rs. 6-00 ; the differential amount was Rs. 36,125. Thus, the total income from coffee for the accounting year 1977-78 was proposed to be assessed at Rs. 4,04,233.82 and not Rs. 3,68,208.82. In the result, the petitioner was liable to be assessed to a further sum of Rs. 23,480 as tax under the Act.

The petitioner resisted the same by pointing Out that it was not a mistake apparent from the records as stated in the notice said to have been issued on February 12, 1981. It was pointed out that the Coffee Board had declared for the relevant year 1977-78, the price of coffee at Rs. 4 per point and not at Rs. 6 per point as claimed by the respondent. It was also pointed out by the petitioner that Rs. 5.50 per point was returned by him having regard to the market trend in coffee at the relevant time. Therefore, he prayed that there was no scope for rectification. However, the respondent proceeded to rectify the order of assessment dated December 16, 1978, as per his order dated February 24, 1981, which is at annex. E to the petition, resulting in the demand notice for Rs. 23,480 which is impugned in this petition. The demand notice is at annex. F to the petition.

Sri Sarangan, learned counsel for the assessee-petitioner, urged two grounds in support of the proposition that the respondent had no jurisdiction to issue show-cause notice and also that the assessment order, annex. E, and demand notice at annex. F were not merely orders resulting from exercising jurisdiction not vested in the respondent but also illegal in themselves. Power of rectification is conferred on the ITO under s. 37 of the Act. Any apparent error can be rectified within the period prescribed in that section. An apparent error must be from the records of the case and not an error discovered from other sources. Any error discovered as a result of investigation of other records or other sources will not constitute an apparent error on the face of the records which alone confers jurisdiction on the Officer concerned to rectify any order. In the instant case the return filed by the assessee disclosed Rs. 5.50 as the cost per point in respect of coffee sold in the relevant accounting year, viz., 1977-78. There was no further investigation by the respondent at the time he passed the original assessment order. In other words, there was no material on record to indicate that the Coffee Board had fixed Rs. 6.00 per point as the coffee sale price for the relevant year. In the result, the information the respondent might have received should be something subsequent to the passing of the original assessment order and outside the records. Thus his proposition that the Coffee Board had fixed the price at Rs. 6 per point, assuming that to be so, was not a matter which was on record. Therefore, in that circumstance it cannot be said to be an apparent error on the face of the record. On that ground alone the assesseepetitioner should succeed in having annexs. E and F set aside. Farther, Sri Sarangan has placed reliance on the decision of the Supreme Court in the case of Mrs. Khorshed Shapoor Chenai vs. Asst. CED (1980) 14 CTR (SC) 356 (1980) 122 ITR 21 (SC). The Supreme Court had occasion to consider the scope of rectification under the E.D. Act. In that case for the purpose of assessment under the E.D. Act, the value of certain lands, which were under acquisition proceedings was taken at the value fixed by the Acquisition Officer and assessed. Thereafter, i.e., after the conclusion of the assessment, the civil Courts awarded a higher compensation for the lands acquired than the value at which they were assessed by the EDO and taking note of the higher compensation paid the assessment was sought to be rectified. In that circumstance, the Supreme Court held that the rectification notice under s. 61 of that Act was also liable to be quashed because the rectification took place on the ground that the initial valuation adopted in respect of the lands acquired, which was obviously wrong in view of the enhanced compensation, was sought to be included in the principal value of the estate. The Supreme Court further added that it could not be said to be a case for rectification of any mistake apparent from the record ; the Controller was really seeking to change his opinion about the valuation of the acquired lands because some other authority, viz., the Civil Court, had valued them differently. That decision really supports the conclusion I have already reached above.

Further, Sri Sarangan has drawn my attention to the second proviso to sub-r. (c) of r. 9 of the Agrl. I.T. Rules framed under the Act which provides for mode of assessment. Rule 9(c) of the Rules deals with assessment of income derived from coffee specifically. Second proviso provides that any receipt in respect of the earlier season’s coffee crop received during the accounting period in excess of the amount already taken into consideration in the assessments of preceding years shall be considered as the income of the previous year. Previous year which is defined under Act for all purposes clearly means the 12 months ending on 31st of March of the year preceding the year for which the assessment is to be made. In other words, having regard to the somewhat prolonged nature of the coffee transaction between the coffee planter and the Coffee Board, it is not possible to receive all the money from the sale of coffee in the given period in that same year. It may spill over to the succeeding year. In that circumstance the estimated value of the coffee is accepted and the assessment concluded and if any excess is received in the following accounting period, the same is taken as the income of the previous year, i.e., the year for which the account and the assessment has been concluded, being the last 12 months in the accounting year in which excess payment was received by the assessee

Therefore, the argument by the learned counsel for the petitioner that when specific provision is made for including any excess income received in that previous year, for which assessment had been concluded, to be read as income of that previous year, the question of rectifying does not arise and if there indeed was excess of income at Rs. 6 per point, the same would be liable to be treated as the income of 1977-78, while assessing the petitioner for the year 1978-79. Even on that ground, it is further urged, the scope for rectification was eliminated by the Rules for assessment themselves.

I think there is much force in that argument and the same should be accepted as the correct position in regard to the assessment of income from the sale of coffee. In this view of the matter, annexs. E and F, viz., the rectification order and the consequent demand notice, are clearly without jurisdiction and illegal and, therefore, they are set aside.

Learned Government pleader is permitted to file his memo of appearance within two weeks. Rule will accordingly issue and be made absolute. Parties shall bear their own costs.

[Citation : 142 ITR 244]