State Of Kerala Represented By The ... vs M/S.Chembra Peak Estate Ltd
2021 Latest Caselaw 7019 Ker

Citation : 2021 Latest Caselaw 7019 Ker
Judgement Date : 1 March, 2021

Kerala High Court

State Of Kerala Represented By The ... vs M/S.Chembra Peak Estate Ltd on 1 March, 2021

                    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 OF
                     S.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 SHAMSUDIN

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.HARIDAS
                 R1 BY ADV. SRI.V.KRISHNA MENON
                 R1 BY ADV. SRI.E.K.MADHAVAN
                 R1 BY ADV. SMT.J.SURYA
                 R1 BY ADV. SMT.P.VIJAYAMMA

OTHER PRESENT:

                 SRI SAMSUDIN B K-GP

      THIS OTHER TAX CASES HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.T.C. No.10/2013
                                        -2-




                                JUDGMENT

Dated this the 1st day of March 2021

S.V. Bhatti, J.

Heard Special Government Pleader Mr.Shamsuddin and

Advocate Mr.E.K. Madhavan for respondent.

2. The Revenue is the petitioner in the instant Other

Tax Case. The Revenue challenges the order of Appellate

Tribunal dated 07.08.2012 in AITA No.6/2012. The issue arises

under Agricultural Income Tax Act, 1991. A Division Bench,

upon noticing divergence of views expressed by two Division

Bench judgments reported in Deputy Commissioner of Sales Tax

(Law), Board of Revenue (Taxes), Ernakulam v. T.P. Elias 1 and Deputy

Commissioner of Agricultural Income Tax v. T.K.S.Dinakaran 2,

1 (1993) 90 STC 25 2 (1998) 232 ITR 164 Ker.

O.T.C. No.10/2013

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 Section 41(1) of the AIT Act are worded differently. In this Section, the Assessing Authority has been vested with the power to re-open a concluded assessment and to make a re-assessment "if or any reason" income has escaped assessment or has been assessed at a too low rate. Obviously, therefore, there are no fetters to this exercise of power, as in the case of Section 147 of the Income Tax Act and resultantly, these two provisions cannot be construed 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 also conspicuous because in the former, the Assessing Authority must obtain a reason to believe from sources that are extrinsic, before he can proceed to re-assess; whereas in the case of the AIT Act, he can do it for any reason, perspicuously to mean even his own change of opinion. These phrases in these two Acts have been chosen carefully by the nomothetic bodies and the difference in the legislative tools adopted in the said exercise is manifest. Therefore, we cannot approve the submissions of the assessee that the words in Section 147 of the Income 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 said above, the Hon'ble Supreme Court has interpreted a similar, if not identical, provision of the Bihar Agricultural Income-tax Act and since that judgment concededly still holds the field, we are bound by it and judicial discipline dictates that this Court should follow it, without having to search for external aids for interpretation of Section 41 of the AIT Act, when a judgment of the Hon'ble Supreme Court on exactly the same point is available.

22. In the afore circumstances, we answer this reference holding that T.P.Elias (supra) lays down the correct law with respect to Section 41 of the AIT Act and that T.K.S.Dinakaran (supra), having been delivered without noticing the binding precedent of the Hon'ble Supreme Court in Maharajadhiraj (supra), is per incuriam and therefore, not deserving of being followed 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 is

contrary to the dictum laid down by the Full Bench. O.T.C. No.10/2013

4. We have taken note of the ratio laid down by the Full

Bench in the order dated 30.11.2018 referred to above and by

following the Full Bench order the issue is answered in favour of

the Revenue.

Hence, the order under revision is set aside. The OTC is

allowed accordingly. No order as to costs.

Sd/-

S.V.BHATTI