AR. Lakshmanan, J. 1. Heard both sides.
2. The petitioner is a firm and an assessee on the file of the Agricultural Income-tax Officer, Kozhikode, for the assessment year 1978-79 (year ending March 31, 1978). The petitioner's assessment was completed under Section 18(3) of the Agricultural Income-tax Act (for short "the Act"), by order March 27, 1984. The assessment order and the demand notice were despatched and were served on the petitioner only on July 20, 1984, that is, long thereafter. A copy of the said order is produced as exhibit P-1. The petitioner preferred an appeal against exhibit P-l proceedings contending that the disallowance of certain expenses were not proper. The appellate authority modified exhibit P-l by his order dated October 3, 1985. Thereafter, a revised order was passed by the Agricultural Income-tax Officer on January 25, 1989, determining the total agricultural income at Rs. 2,99,876.20 as against Rs. 3,52,108 fixed originally in exhibit P-l order. Against exhibit P-l order, the petitioner preferred a revision before the Commissioner of Agricultural Income-tax, Trivandrum, under exhibit P-2, dated November 29, 1988. It was contended that the assessment order, exhibit P-1, was served on the petitioner only on July 20, 1984, though it is dated March 27, 1984, and hence barred by limitation. There were other contentions also regarding the disallowance of labour charges for manuring, etc. The Commissioner, by his proceedings dated July 18, 1989, in a common order for the assessment years 1978-79 and 1979-80, remanded the case to the Agricultural Income-tax Office, Kozhikode, with a direction to dispose of it according to law. A copy of the common order in Agricultural Income-tax Revision Petitions Nos. 144 and 145 of 1989 is produced and marked as exhibit P-3. Thereafter, the petitioner filed a petition dated August 27, 1989, for rectifying the mistakes in exhibit P-3, namely, that no specific finding was given regarding the ground that the assessment was barred by limitation. A copy of the said petition is produced and marked as exhibit P-4. The petitioner has also filed a reference application under Section 60 of the Act to draw up a statement of the case and refer it to the High Court, which is marked as exhibit P-5. The Commissioner, by his order dated December 2, 1989, dismissed the same under exhibit P-6.
3. Sri P. Balachandran, learned counsel appearing for the petitioner, submitted that the assessment order (exhibit P-1) and the demand notice are barred by limitation. He invited my attention to Section 35(2) of the Act, which reads thus :
"35. Income escaping assessment.--(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 Agricultural Income-tax Officer 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-section (2) of Section 17 and may proceed to assess or reassess such income and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section :
Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be :
Provided further that the Agricultural Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so.
(2) No order of assessment under Section 18 or of assessment or reassessment under Sub-section (1) of this section shall be made after the expiry of five years from the end of the year in which the agricultural income was first assessable : . . ."
4. The above section provides that no order of assessment under Section 18 or of assessment or reassessment under Sub-section (1) of this section shall be made after the expiry of five years from the end of the year in which the agricultural income was first assessable. Under Section 18 of the Act, the officer shall assess the total agricultural income of the assessee and determine the sum payable by him on the basis of such return. A combined reading of the two sections leads to the conclusion that what is contemplated under Section 35 of the Act is a determination of both the total agricultural income as well as the tax to be paid. It is submitted that exhibit P-1 order and the demand notice were served on the petitioner only on July 20, 1984, long after the period prescribed by the statute. Exhibit P-l order is dated March 27, 1984. According to the petitioner, it was not despatched along with the demand notice before the expiration of the period prescribed under the Act. In the instant case, the assessment year in question was 1978-79. Five years from the end of the year in which the agricultural income was first assessable ended on March 31, 1984. The assessment order is dated March 27, 1984, and the demand notice was served on July 20, 1984. It is contended by learned counsel for the petitioner that the order of assessment became alive only when the notice of demand was served and that was beyond the period of five years and, therefore, the assessment was barred by limitation. As rightly pointed out by learned counsel for the petitioner, the communication of an order is an essential part of making such an order. According to the petitioner, exhibit P-l was communicated to him only on July 20, 1984, and hence beyond the period of limitation and, therefore, the Commissioner was not justified in merely noting the above argument without giving a binding decision in exhibits P-3 and P-6 orders. It is submitted that the Commissioner should have considered the above argument which goes to the root of the matter and should have given a proper finding before directing the lower authority to consider other points.
5. A perusal of the order of the Commissioner under exhibit P-3 would show that the Commissioner has not decided the issues raised by the petitioner and has left open all the issues to be agitated afresh before the assessing authority. The Commissioner, in his order dated December 2, 1989 (exhibit P-6), which was filed as a rectification application under Section 36 of the Act as well as the reference application under Section 60 of the Act against the Revision Orders Nos. 144 and 145 of 1989 which were filed against the assessment orders for the years 1978-79 and 1979-80, has extracted the grounds raised in the two revisions filed by the petitioner. The question of limitation has been raised as ground No. 7 for the assessment year 1979-80. It is stated in ground No. 7 that the assessment is barred by limitation. The Commissioner has also extracted other grounds raised by the petitioner in the revisions. The Commissioner was of the view that since the petitioner has raised many grounds which actually necessitated a detailed verification of the basic records, receipts, vouchers, etc., at the lower level, he has remanded the matter to the lower authority. The applicability of Section 35(2) on an assessment under Section 18(4) was also left open to be decided by the lower authority. Since the Commissioner has remitted the entire matter for a re-examination of the whole facts, I am of the view that an interference with such an order is not warranted at this stage. As pointed out by the Commissioner, the petitioner is also free to raise any other new grounds along with the grounds raised earlier. I make it clear that the assessing authority shall decide the specific ground raised by the petitioner with regard to the limitation issue. It is the petitioner's case that the assessment order was communicated to him only on July 20, 1984, that is, beyond the period of five years as provided under Section 35(2) of the Act. The assessing authority shall consider this specific issue with reference to the records and decide the same on the merits.
6. As rightly pointed out by learned counsel for the petitioner, an order of assessment comes into force only when it is communicated. This is not only by reason of Section 30 of the Act, but also for the more fundamental reason that a party against whom an order is made must be put on notice of that order. The date of making or signing the order is not determinative of its effect. The order, at that stage, is only unilateral in a sense and not irrevocable and it becomes bilateral or binding only on communication. In this case, the date of communication of order of assessment is in dispute. As already noticed, according to the petitioner, it is beyond the period of limitation. A Division Bench of this court comprised Paripoornan and Viswanatha Iyer JJ., in an identical matter in Government Wood Works v. State of Kerala [1988] 69 STC 62 held thus (page 69) :
"The order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the means of knowing it. It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it or even destroy it, before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period, though the actual service of the order may be beyond that period."
7. The Division Bench, in the above case, has also remitted the matter to the Tribunal for an examination of the records to ascertain whether the order of the Deputy Commissioner in that case had been issued from his office within the period of four years prescribed under Section 35(2) of the Act. The Tribunal was directed to adjudicate the matter in the light of the observations contained in that judgment and the judgment in the case of Malayil Mills v. State of Kerala (TRC Nos. 15 and 16 of 1981), decided by this court on July 7, 1982. I, therefore, do not feel justified in interfering with the order of the Commissioner in remitting back the matter to the assessing authority. I confirm the remittal order to the lower authority for consideration of the question whether the assessment order under Section 35 has been passed and served within the time prescribed in Section 35(2) of the Act and to pass a considered order in the light of the issues and contentions raised by the petitioner in this original petition. The lower authority may consider other issues, if necessary, and that would be depending upon the finding to be rendered on the question of limitation.
8. The original petition is ordered accordingly. No costs.