K. K. USHA, J. The common issue involved in these cases is whether the amendment introduced by the Kerila Finance Act, 1987, to the Kerala Plantation Tax Act, 1960, would be applicable to the assessment for the year 1987-88 under the said Act. OP Nos. 1768, 2584, 2628, 2715, 2996, 3610, 4427, 6139, 6686 and 6821 of 1988 were filed by assessees contending that the amendment introduced by the Finance Act, 1987, by which the rate of tax was enhanced, would be applicable only from the asst. yr. 1988-89. By a common judgment dt. 21st Oct., 1988, Sukumaran, J. dismissed all the original petitions rejecting the contentions of the assessees. W.A. Nos. 771, 804, 809, 810, 843, 844, 885 and 950 of 1989 are filed by the assessee against the above judgment. W.A. Nos. 550, 772 and 811 of 1989 are filed by petitioners in OP Nos. 10355/88 and 5662 and 5679 of 1989 respectively. These writ petitions were dismissed by the same learned Judge, following the common judgment in OP No. 1768/88 and connected cases.
2. WA 148/94 is at the instance of the State against the judgment in OP 1701/88. The above original petition filed by the assessee has been allowed by another learned single Judge, Pareed Pillai, J. as he then was, holding that the amendment cannot have effect for the asst. yr. 1987-88. The judgment in the original petition is reported as Panibra Coffee Plantations vs. Tahsildar 1991 (2) KLT 833. The above judgment was followed by T.L. Viswanatha Iyer, J. in OP 3330/93. WA 137/94 is filed by the State against the judgment in OP 3330/93. After noting the conflict of decisions as mentioned above, learned single Judge referred OP Nos. 10413/88 and 308/89 for consideration of a larger Bench. The remaining writ petitions were posted along with the writ appeals for being heard by a Bench.
3. When these matters came up for hearing before a Bench, by a detailed order, the cases are referred for consideration by a larger Bench. Following questions are referred:
"(a) Whether the principle applied with regard to the IT Act, that the law as stood on the first of April of any financial year must apply to the assessment of that year, shall also be applicable for the assessment of tax under the Kerala Plantation Tax Act?
(b) Whether under the Kerala Plantation Tax Act, year is the unit of assessment and if any change is made during the course of a financial year with regard to the rate of tax, the same would be applicable for that financial year?
(c) Whether the valuation date as defined under s. 2(9) of the Kerala Plantation Tax Act has any relevance with regard to the rate of tax applicable?
(d) Whether the judgment of this Court rendered by Justice K. Sukumaran, as he then was in OP No. 1768 of 1988 which has been appealed against and further whether the judgment rendered by Justice M.M. Pareed Pillay, as he then was in OP No. 1701 of 1988 which has,also been appealed against have laid down the correct law? It may be pointed out that the judgment rendered by Justice K. Sukumaran was not brought to the notice of Justice Pareed Pillay. "
4. Kerala Plantation Tax Act, 1960 (hereinafter referred to as 'the Act') provided for the levy of an additional tax on plantations in the State of Kerafa. Sec. 3 of the Act which is the charging section, reads as follows:
4. Kerala Plantation Tax Act, 1960 (hereinafter referred to as 'the Act') provided for the levy of an additional tax on plantations in the State of Kerafa. Sec. 3 of the Act which is the charging section, reads as follows:
"3. Charge of plantation tax:-(1) Subject to the other provisions contained in this Act, for every financial year commencing on and from the first day of April, 1960, there shall be charged in respect of the lands comprised in plantations held by a person on the corresponding valuation date a tax (hereinafter referred to as 'plantation tax') at the rates specified in Schedule I; and the person holding such plantations shall be liable to pay the plantation tax.
(1A) For the removal of doubts it is hereby declared that a person holding a plantation shall not be exempt from the liability to pay plantation tax under sub-s. (1) on the ground that the land comprised in the plantation belongs to the Government.
(2) The plantation tax assessed under this Act shall be payable by the assessee for every financial year until the extent of plantation held by him is revised and the plantation tax is assessed on the basis of the revised extent under sub-s. (3), and from the financial year immediately following the revision the plantation tax assessed on the basis of such revision shall be payable.
OW The assessing authority may, at any time, suo motu revise the extent of plantations held by an assessee determined under s. 5, after affording him a reasonable opportunity of being heard.
(b) The assessing authority shall, on application by an assessee, revise the extent of plantations held by him determined under s. 5, if it is proved to the satisfaction of the assessing authority that circumstances exist for revising the extent of plantations held by that assessee.
(c) An application under cl. (b) shall be in the prescribed form and shall be verified in the prescribed manner.
(d) Where the extent of plantations has been revised under cl. (a) or cl. (d), the plantation tax payable thereon shall be assessed on the basis of the revised extent.
(4) For purposes of the assessment of plantation tax payable by a person under this Act, the extent of plantations held by him shall be determined in the manner specified in Schedule Il.
(5) The tax charged on any land under this section shall be in addition to the land revenue or any tax in lieu thereof, if any, payable in respect of such land. "
The term 'valuation date' referred in s. 3 is defined under s. 2(9) as follows:
"M 'Yaluation date" in relation to the financial year commencing on the first day of April, 1960, means the first day of September, 1960, and in relation to any other financial year for which ail assessment is to be made under this Act means the first day of April of that year."
Under the Kerala Finance Act, 1987, by way of an amendment, Schedule 1 referred in sub-s. (1) of s. 3 of the Act was substituted, which had the effect of enhancing the rate of tax.
5. Assessees contended that the amendment under the Finance Act, 1987, which was brought into force w.e.f. 1st July, 1987, cannot affect the assessment for the year 1987-88. They are liable to be assessed for the year 1987-88 on the basis of the rate specified in Schedule 1 as it existed on 1st April, 1987. State, in its writ appeals as well as in answer to the appeals and the original petitions filed by the assessees, contended before us that since the amendment was brought w.e.f. 1st July, 1987, the new schedule would be applicable for assessment for the period between 1st July, 1987, to 31st March, 1988.
6. In the light of the above stand taken by the State, the question that has to be examined is whether, in the scheme of the Act, it is possible to have two assessments for the asst. yr. 1987-88 applying two different schedules. In this context, it is relevant to note that the change brought about by the new schedule is not only in the rate of tax by way of enhancement, but also in the extent of plantation eligible for exemption. As per the schedule, which was in force on 1st April, 1987, no tax was payable where the aggregate extent of plantations held by a person did not exceed 4 hectares. Under the new schedule, the scheme of exemption itself was modified. Plantations -vvere categorised into two for the purpose of exemption. It was provided that no tax will be payable where the aggregate extent of plantations (except coconut and arecanut plantations) held by a person does not exceed 2 hectares. In the case of coconut and arecanut plantation held by a person, the extent of exemption was upto 4 hectares. This classification between coconut and arecanut plantations and other plantations are seen followed in the matter of rate of tax also unlike in the schedule as it was available on 1st April, 1987. By virtue of the provisions contained under sub-s. (2) of s. 4, every person who holds as on 1st April of any year plantation in excess of the extent exempted under the Act, shall file a return to the assessing authority in the prescribed form before 1st day of June of that year. If we are to accept the contention taken by the State as above, the assessee has to file two returns, one for the period from 1st April, 1987, to 30th June, 1987, and the other, for the period from 1st July, 1987, to 31st March, 1988. If, on the basis of the return filed by an assessee before the Ist day of June, 1987, as he is bound to do, and an assessment is completed before 1st July, 1987, such an assessment can be only for the entirety of the year 1987-88, in view of the provisions contained under s. 3. If the contention now raised by the State that w.e.f. Ist July, 1987, a different basis has to be adopted for assessment, is accepted, then, necessarily, the assessment which is already completed as per the return filed by the assessee before 1st June, 1987, has to be revised. The question that has to be considered is whether there is any provision under the Act for filing two returns by the assessee. It is also to be considered whether there is any machinery provided under the Act for revising an assessment already made before lst July, 1987, and to pass two different assessments, one for the period from 1st April, 1987, to 30th June, 1987 and the other from 1st July, 1987, to 31st March, 1988.
7. The decision of Sukumaran, j. in OP No. 1768/88 and connected cases, does not provide an answer for the above question, since, in that decision, the view taken was that the new schedule should deem to have come into effect from Ist April, 1987. We notice the caution given by the learned Judge in the light of the decision of the Supreme Court in Hindustan Paper Colpn. Ltd. vs. Government of Kerala AlR 1986 SC 1541, that interpretation of any legislation is not to be made on the basis of default or even a concession rashly made. On considering the history of this legislation, we are unable to take a view that the stand of the State that new schedule has not come into effect from lst April, 1987, is a concession rashly made as the one which the Supreme Court had occasion to consider the comment upon in the abovementioned decision.
8. The enactment was originally styled as The Kerala Plantations (Additional Tax) Act, 1960. Under sub-s. (3) of s. 1 of the above Act, it was provided that the Act shall deem to have come into force on 1st day of April, 1960, even though the Act received the assent of the Governor only on 22nd Aug., 1960, and published in the Kerala Gazette dt. 24th Aug., 1960. Under Kerala Plantations (Additional Tax) Amendment Act, 1967, Act 19 of 1967, the title of the Act was changed as 'Kerala Plantations Tax'. Schedule 1 was amended and new schedule was substituted. Even though the amendment Act received the assent of the Governor on Ist Sept., 1967, and it was published in the Gazette on the same day, it was brought into force only from 1st Nov., 1967. This was followed by Kerala Plantation Tax (Amendment) Act, 1971, Act 28 of 1971. This Act also amended Schedule I. It was provided under sub-s, (2) of s. 1, that the Act shall deem to have come into force on 1st April, 1971. It is relevant to note that the above Amendment Act received the assent on the Governor only on 23rd Aug., 1971 and published in the Gazette dt. 24th Aug., 1971. The Kerala Plantation Tax (Amendment) Act, 1975, Act 12 of 1975, did not bring any modification to Schedule I. But an amendment was made to Schedule I by Kerala Plantation Tax (Amendment) Act, 1976 (Act 34 of 1976), which received the assent of the Governor on 11th Nov., 1976, and published in the Kerala Gazette on 13th Nov., 1976. Sub-s. (2) of s. 1 provided that the Act shall deem to have come into force on 1st day of April, 1976. Kerala Plantation Tax (Amendment) Act, 1980, Act 18 of 1980 substituted a new schedule for the e>dsting Schedule I. Sec. 3 of the above Act provided that the substituted schedule shall come into effect on and from 1st day of April, 1980. A further amendment to the Act was under Kerala Plantation Tax (Amendment) Act, 1981 (Act 25 of 1981), which received the assent of the Governor on 22nd Sept., 1981, and published in the Gazette dt. 23rd Sept., 1981. Sec. 2 of the above Act, by which a new schedule was substituted for Schedule I provided that substitution would deem to have taken effect from lst April, 1981. In the year 1985 also, a new Schedule I was substituted. It was under Kerala Finance Act, 1985, which came into force w.e.f. lst April, 1985. It is thereafter, the amendment of the year 1987 was made with which we are presently concerned. It is brought under Finance Act, 1987 (Act 18 of 1987), and according to the provisions contained under ss. (2) of s. 1 of the above Act, the amendment shall be deemed to have come into force on the 1st July, 1987.
9. The above facts would show that legislature had made specific provision either in the Amending Act or in the Finance Act regarding the date from which the amendment to the Act shall take effect.
Eventhough substitution of a new Schedule 1 under the Amendment Act 19/ 1967 came into force on Ist Nov., 1967, the enhanced rate of tax introduced under the amendment was made applicable only from the financial year 196869. This is clear from Form IA provided under r. 16 for notice of assessment under s. 5/3(3) of the Kerala Plantation Tax Act, 1960, as amended by Act 19/1967. This form was inserted in the Rules by Government Notification SRC No. 71/69 dt. 5th Feb., 1969, published in Kerala Gazette No. 7, dt. 18th Feb., 1969. The relevant portion of the Form is as follows:
"FORM IA [See Rule 16] [NOTICE OF ASSESSMENT UNDER S. 5/3(3) OF THE KERALA PLANTATION TAX ACT, 1960 AS AMENDED BY THE KERALA PLANTATIONS (ADDITIONAL TAX) AMENDMENT ACT, 19671.
To .
Whereas under the Kerala Plantation Tax Act, 1960 as amended by the Kerala Plantations Tax Amendment Act, 1967 (19 of 1967) which has come into force on the 1st Nov., 1967 the rate of plantation tax has been raised from Rs. 8 per acre to Rs. 50 per hectare and the amount of tax fixed in the assessment already made under s. 5/3(3) of the Kerala Plantations Tax Act, 1960 and communicated to you as per notice of demand No . dated requires revision on the basis of the rate of plantation tax fixed under the saidAct as amended with effect from the financial year 1968-69 and whereas the details available in this office show that you held Plantations to the extent shown below, it is hereby informed that you are assessed to pay plantation tax amounting to Rs . under the said Act as amended by Act 19 of 1967.
Notice is hereby given that you may file objections, if any, on the above assessment to the undersigned within 15 days of receipt of this notice failing which, the assessment shown above will be made absolute on the presumption that you have no objections to the above assessment."
Therefore, we are of the view that when the Kerala Finance Act 18 of 1987 provided that the provisions of the Act shall deem to have come into force on 1st July, 1987, the legislature intended that all the amendments brought under the Finance Act, including the amendment to Schedule I, shall take effect only from 1st July, 1987, and not from 1st April, 1987. We are arriving at this conclusion not on the basis of any concession made on behalf of the State, but on the specific provisions of the Finance Act and also in the background of the history of legislation. Wherever the legislature wanted the amendment to take effect from 1st April of the relevant year, it has-been specifically provided so. In the year 1987-88, no such intention is expressed by the legislature.
10. Learned Judge has taken the view that once Schedule I is substituted by s. 3 of the Amendment Act, the only available schedule before the assessing authority would be the substituted one and not the pre-existing one and it would then follow that the amended rates are necessarily to be applied from the very commencement of the financial year 1987~88. Reliance was placed by the learned Judge on a Bench decision of this Court in Varkey Thomas vs. State of Kerala, 1960 KLT 145 in support of the above view. We are afraid, we cannot agree with the above view expressed by the learned Judge. It is to be noted that by substituting Schedule 1, it is not the rate of tax alone that is amended, but, as mentioned earlier, even the very scheme of prescribing the rate has been changed. Plantations are classified into two categories for the purpose of granting exemption as also for the purpose of rate of tax. The area liable to be exempted under these two different categories are also modified from the schedule which was available as on Ist April,' 1987. It cannot be taken that the legislature wanted only the amendment in the rate of tax brought under the new Schedule I to take effect from 1st April, 1987. We do not find any reason to hold that the legislature intended to apply an entirely new scheme for fixing the area of plantation and the rate of tax w.e.f. 1st April, 1987, when the Finance Act specifically provides that the provision shall come into effect only from 1st July, 1987. The Bench decision of this Court relied on by the learned Judge should be treated as impliedly overruled by the Supreme Court in Karimtharuid Tea Estate Ltd. vs. State of Kerala (1966) 60 1TR 262 (SC) : AlR 1966 SC 1385 . The question that was considered by this Court as well the Supreme Court was whether the Kerala Surcharge on Tax Act, 1957, which came into force on 1st Sept., 1957, could be regarded as law in force at the commencement of the asst. yr. 1957-58, so as to levy tax under the above Act against the assessee for the asst. yr. 1957-58. This Court took the view that the Act would be applicable in respect of transaction prior to Ist Sept., 1957, and, therefore, an assessment could be made for the asst. yr. 1957-58. This decision was reversed by the Supreme Court and holding that the surcharge having come into force on Ist Sept., 1957, and the said Act not being retrospective in operation, it could not be regarded as law in force at the commencement of the year of assessment 1967-58-, therefore, no surcharge could be levied under the Act for the asst. yr. 1957-58. In the present case, we have to examine the effect of the amendment which came into force on 1st July, 1987, in the light of the scheme of the Act.
11. Sec. 3(1), which is the charging section, provides that for every financial year commencing from the first day of April, 1960, there shall be charged in respect of the lands comprised in plantations held by a person on the corresponding valuation date a tax at the rates specified in Schedule I and the persons holding such plantation shall be liable to pay the tax. The liability to pay tax crystallises on 1st of April of every year. The extent of the land has to be computed on the valuation date, which means, the 1st day of April of that year. The charging section itself refers to Schedule I thus making the rate of tax at part of the charging section. This would indicate that the assessment has to be made with reference to 1st April of the relevant year. Certain other provisions of the Act would also provide an indication to the same effect. The effect of oub-Q. (2) of ot 3 io that once an assessment is made under the AM, the assessee is bound to continue to pay the tax as assessed every year, until the extent of plantation held is revised and the plantation tax is assessed on the basis of the revised extent, as per sub-s. (3) of s. 3. But the tax assessed on the basis of such revision shO be payable only from the financial year immediately following the revision. Therefore, if an assessee, during the course of a financial year, is dispossessed of half of the area of plantations held by him as on 1st April, of that year, he will get the benefit of reduction in tax only the year immediately following that year. So also, even if he acquires additional property during the financial year, the additional tax incident will visit on him only during the following financial year. All these provisions could lead only to one conclusion, namely, that the assessment under the Act can be made only with reference to the 1st day of April of the financial year whether it is in the matter of computation of the area to be assessed or the rate of tax to be imposed.
12. Even though several authorities are cited before us by learned counsel for the assessee, we find that the only decision which is relevant to the issue is CST vs. Modi Sugar Mills Ltd. AlR 1961 SC 1047. In the above case, Government of United Provinces had, by notification dt. 8th June, 1948, altered the rate of sales-tax in the matter of various commodities including non-edible oils w.e.f. 9th June, 1948, from 3 pies to 6 pies per rupee. By reason of the alteration of the rate and its incidence in the course of the year, the assessee does not become liable to pay tax at the higher rate on a part of the turnover of the previous year. The question that arose for consideration was whether an assessee, who is a manufacturer and dealer of non-edible oils and who elected the previous year as the basis of his assessment in the asst. yr. 1948-49, is liable to pay tax for the asst. yr. 1948-49 on the turnover of the previous year in respect of sales of non-edible oils at the flat rate of 3 pies per rupee or at the rate of 3 pies per rupee and 6 pies per rupee on the turnover of the previous year in proportion to the two periods from 1st April, to 8th June, 1948, and from 9th June, 1948, to 31st March, 1949. Under the UP ST Act and Rules, there were two distinct and clear cut schemes to assess sales-tax. (1) Where the taxpayer elected to submit his return based on the turnover of the previous year, and (2) where he elected or was bound by law to submit his return on the turnover of the year of assessment. The taxpayers coming under the first scheme paid the tax on the turnover of the previous year and at the rate in force after the end of the period and applicable to it. The taxpayer being taxed under the second scheme paid tax in quarterly instalments based on the previous quarter's actual turnover and at the rate or rates prevalent in the quarter or applicable to it. In the case of a dealer who adopts the turnover of the year of assessment for purposes of taxation, the application of the notification altering the rate of tax and the incidence of tax does not present any difficulty. Notification enjoins levy of tax at the altered rate only in respect of sales taking place after the fixed date, and all sales which preceded that date are to be taxed at the original rate. A question_ therefore, arose whether there is any machinery provided under the Act or Rules for projecting this division of the year of assessment into the previous year and for apportioning the turnover of that year. The Court found that there was no express provision in that behalf and it is difficult to imply such a provision in the Act. Adoption of the turnover of the previous year as the taxable turnover for the year of assessment was itself based on a fiction and in the absence of any express provision either in the Act or in the Rules or even in the notification setting out machinery for such a division of the year, it could not be held that the scheme of a fictional division can be projected into the previous year to make an artificial division of the turnover for imprinting thereon the altered rate of assessment as from the date of division. Supreme Court took the view that by imposition of a different tariff in the course of the year, an incidence of tax liabW~,, may competently be altered by the legislature,. but, for effectuating that alteration, the legislature must deidse machinery for enforcing it against the taxpayer and if the legislature has failed to do so, the Court cannot resort to a fiction which is not prescribed by the legislature and seek to effectuate that alteration by devising machinery not found in the statute. Since, no such machinery was seen provided under the Act, it took the view that the assessee who had elected the previous year as the basis of his assessment in the asst. yr. 1948-49, is liable to pay tax for the asst. yr. 1948-49 at flat rate of 3 pies per rupee.
13. According to us, in order to have a separate assessment under the Act from Ist July, 1987, hy applying the new Schedule 1 as substituted by Finance Act, 1987, machinery for the same should have been provided under the Act by enacting appropriate provisions.
14. Learned Govt. Pleader made an attempt to contend that the power given under sub-s. (3) of s. 5 and s. 6A could be exercised for the purpose of making a fresh assessment for the period from 1st July, 1987. We do not find any merit in this contention. The determination provided under sub-s. (3) is in the event a notice issued under sub-s. (2) of s. 5 when the assessing authority was not satisfied with the return submitted by the assessee as correct and complete. The return that can be submitted by the assessee in the year 1987-88 before 1st June, 1987, would be on the basis of the position available as on 1st April, 1987. Therefore, the subsequent amendment w.e.f. 1st July, 1987, cannot affect the return already filed by the assessee. So also, the provisions contained under s. 6A relating to escaped assessment cannot be treated as a machinery provided under the Act for having a second assessment order for the period from 1st July, 1987, to 31st March, 1988. We are, therefore, of the view that the contention taken by the State that since the amendment has come into effect from 1st July, 1988, there should be two assessments in the year 1987-88, first, on the basis of schedule 1 available as on 1st April, 1987, and the second, on the basis of the Schedule substituted w.e.f. 1st July, 1987, The schedule, which is introduced w.e.f. 1st July, 1987, can have effect only for the asst. yr. 1988-89.
15. As mentioned earlier, in 1991 (2) KLT 833 (supra), Pareed Pillay, J. as he then was, has taken the view that the amendment brought under the Finance Act, 1987 w.e,f. 1st July, 1987, cannot apply to the assessment for the year 1987-88, It is observed by the learned Judge that 'any amendment in the taxing statute which comes into force after the first day of April of a financial year cannot apply to the assessment for that year and so the respondents can claim tax on the basis of the amendment only during the next financial year and not during the current financial year'. Even though, we agree with the conclusion arrived by the learned Judge, we are unable ta agree with the reasoning.'It is not correct to say that any amendment in a taxing statute which comes into force after the 1st day of April of the financial year cannot apply to assessment for that year. It will depend on the scheme of the Act, nature of the. amendment brought and also the machinery provided under the Act. We have already made reference to the decision of the Supreme Court in AIR 1961 SC 1047 where it has been held that by imposition of a different tariff in the course of the year, the incidence of tax liability may completely be altered by the legislature. Therefore, a general proposition that any amendment in a taxing statute which comes into force after the 1st day of April of that year cannot apply to the assessment of that year may not be quite correct. But, as mentioned earlier, we fully agree with the conclusion arrived at by the learned Judge.
16. Large number of decisions under the IT Act were cited at the Bar. We do not think it necessary for us to consider them since, we find that the scheme under the Kerala Plantations Tax Act, 1960 is entirely different from the scheme under the IT Act, 1961.- A very useful discussion as to how a liability of an assessee to pay tax, depends upon the provisions of the Indian IT Act as they were in force on the 1st of April of the assessment year, is available in the judgment of Chagla, C2. in Scindia Steam NaOgation Co. Ltd. Bonibay vs. CIT (1954) 26 ITR 686 (Bom) : AIR 1955 Bom 230 .. 7 as follows:
1n order to appreciate this contention one must bear in mind two basic facts about the Indian IT Act. The first is that the Indian IT Act subjects to tax not the income of the assessee in the year of assessment but in the previous year, and the other basic fact is that the liability to tax arises not by reason of the provisions of the Indian IT Act but by reason of the fact that a Central Act fixes the rate at which the assessee is liable to pay tax and it is by reason of the Central Act that the income of the previous year of the assessee becomes liable to tax. If these two basic facts are borne in mind, then the position in law becomes very clear and very simple. Now, the income of the previous year of the assessee is for the year 1945-46 which ended on 31st March, 1946, and it was the Finance Act of 1946 that imposed a liability upon the assessee to pay tax on this income at the rate mentioned in that Act."
As far as Plantation Tax Act is concerned, it is not necessary for the Finance Act of every year to fix the rate of tax. The rate of tax as provided under Schedule I is made part of the charging section, namely, sub-s. (1) of s. 3 of the Act. Reference was also made by learned counsel to the provisions of the WT Act, 1957. The provisions of sub-s. (1) of s. 3, the charging section under the above Act are somewhat analogous to the provisions of sub-s. (1) of s. 3 of the Plantations Tax Act.
17. In the light of the above discussion, we set aside the common judgment in OP Nos. 1768, 2584, 2628, 2996, 4427, 6139, 6686 and 6821 of 1988 and allow WA Nos. 771, 804, 809, 810, 843, 844, 885 and 950 of 1989 filed against the common judgment. The judgments in OP Nos. 10355/88, 5662 and 5679 of 1989 are also set aside and WA Nos. 550, 772 and 811 of 1989 are allowed. WA Nos. 137 and 148 of 1994 filed by the State against the judgments in OP Nos.
3330/93 and 1701/88 are dismissed. The original petitions which stand referred, are disposed of as follows:
OP Nos. 10413138, 113, 307 & 308189
18. These writ petitions are filed by State of Kerala challenging the orders passed by District Judge, Thodupuzha under s. 9A of the Kerala Plantations Tax Act, 1960, on a reference by the appellate authority. 1st respondent in these petitions are assessees under the Act, The assessees had filed appeals before the Sub-Collector, Devicolam challenging the demand of plantation tax for the period from Ist July, 1987, to 31st March, 1988, on the basis of the enhanced rate as per the 1st Schedule substituted by the Finance Act, 1987. The appellate authority rejected the appeals and on the request made by the assessees, the question whether a separate assessment can be made for the period from 1st July, 1987, to 31st March, 1988, on the basis of new Schedule 1 was referred to the District Judge as contemplated by s. 9A of the Act. The District Judge took the view that the proposed assessment for the period from 1st July, 1987, to 31st March, 1988, on the higher rate prescribed under Schedule 1 introduced by Finance Act, 1987, was invalid, and the reference was answered accordingly. It is those orders which are being challenged by State in each of the above mentioned writ petitions.
19. Since we have already taken the view that assessment as per the new Schedule can be made only from the asst. yr. 1988-89, we affirm the finding of the District Judge in the orders impugned in these writ petitions. The writ petitions therefore stand dismissed. OP Nos. 8276 & 9933 of 1989 & 11351191.
20. In these original petitions, challenge is at the instance of the assessees under the Kerala Plantation Tax Act, 1960. Assessees contended that the new Schedule I introduced under the Finance Act, 1987, cannot be made applicable for any portion of the assessment for the year 1987-88. The above contention was not accepted by the assessing authority. Appeals filed were also unsuccessful. Petitioners then moved the appellate authority to refer the question of law for consideration of the District Judge as contemplated by s. 9A of the Act. Appellate authority refused to refer the question of law for the reason that this Court had dismissed OP Nos. 6686/88 and 6139/88 where similar contentions were raised by assessees.
21. In the light of the view which we have taken that the amendment can have effect only for the asst. yr. 1988-89, these original petitions are only to be allowed.
We, therefore, quash Exts. P1, P2, P4 and P6 in OP Nos. 8276 and 9933 of 1989 and Exts. P1, P2 and P4 in OP 11351191. It is made clear that the assessees will be liable to pay tax under the Plantation Tax Act, 1960, for the asst. yr. 1987-88 on the basis of Schedule 1 as it was available on 1st Apd, 1987. OP No. 8334 of 1990 22. This original petition is at the instance of the assessee under the Kerala Plantations Act, 1960. Assessee contended that the new Schedule I introduced by Kerala Finance Act, 1987 cannot be made applicable during the asst. yr. 1987-88 for the period from Ist July, 1987 and that no separate assessment can be made from Ist July, 1987, to 31st March, 1988. Rejecting the contention raised by the assessee, Ext. P1 order was passed. Ext. P2 is the demand made pursuant to Ext. P1 and Ext. P4 is the order passed by the 2nd respondent rejecting the appeal filed by the petitioner-assessee. Ext. P6 is the order passed by the District Judge, Thodupuzha. on reference under s. 9A of the Act. Following a decision of this Court in OP Nos. 6686188 and 6139188 where similar contentions raised by assessees were rejected. District Court upheld the assessment at the enhanced rate from 1st July, 1987, to 31st March, 1988. This order is under challenge in this original petition.
23. Following the view which we have already taken that the enhanced rate introduced by Finance Act, 1987 can be made applicable only for the asst. yr. 1988-89, this original petition is only to be allowed. We, therefore, quash Exts. P1, P4 and P6. It is made clear that the assessee will be liable to pay tax under the Plantations Tax Act, 1960 for the asst. yr. 1987-88 on the basis of Schedule I as it was available on 1st April, 1987. There will be a further direction to the respondents to refund to the petitioner, if any amount has been paid by the petitioner in excess of the amount that would be due from it on computation of tax as per the rate available on 1st April, 1987, for the asst. yr. 1987-88.
OP No. 16530 of 1992
24. Petitioner herein is an assessee under the Kerala Plantations Tax Act, 1960. Petitioner challenged the assessment for the period from 1st July, 1987, to 31st March, 1988, on the enhanced rate of tax introduced by the Kerala Finance Act, 1987, by filing an appeal before the 2nd respondent. The appeal was dismissed under Ext. P6 order. Petitioner thereupon filed Ext. P7 application for rectification of the appellate orders under s. 11 of the Act. No final orders have been passed on the above application. It is contended by the petitioner that in view of the decision of this Court in Pambra Coffee Plantabons vs. Tahsildar 1991(2) KLT 833, no assessment can be made at the enhanced rate for the asst. yr. 1987-88 and, therefore, its application under s. 11 has only to be allowed.
25. A counter-affidavit has been filed in this case contending that since the State has filed an appeal from the judgment in OP 1701/88, the contention raised by the petitioner cannot be accepted.
26. We have already dismissed the appeal filed by the State against the judgment in OP 1701/88 holding that the rate enhanced as per the Finance Act, 1987, has no application for the asst. yr. 1987-88. In view of the above, the 1st respondent is directed to consider Ext. P7 and pass orders thereon in the light of this common judgment. If any amount has been paid by the assessee in excess of the amount due as tax for the asst. yr. 1987-88 by applying Schedule I as it was available on 1st April, 1987, the excess amount would be refunded to the petitioner. 1st respondent is directed to pass final orders within two months from the date of receipt of copy of this judgment. The original petition is allowed to the above extent.
OPEN