1968 PLP 253 (PTD)

"In a case like this it is desirable that the Agricultural Income -tax Officer should make a local enquiry before taking assess ment work but the Income‑tax Officer did not do it. In subsequent years, the Agricultural Income‑tax Officer should better hold a local enquiry and then proceed with the assess ment." The plaintiff's allegation is' that in none of the subsequent years any local enquiry was made by the Agricultural Income‑tax Officer in spite of the direction of the Assistant Commissioner of Agricultural Income‑tax in that regard. The plaintiff feels aggriev ed as assessment for the aforesaid years was made without holding any local enquiry as directed and prayed for by him. Accordingly he brought this suit for a declaration that the assessment of Agricultural income‑tax for the years 1947‑48, 1948‑49, 1949‑50 and 1950‑51, 1952‑53 and 1953‑54 was made by the Agricultural Income‑tax Officer without jurisdiction and that the assessment is null and void. The trial Court decreed the suit holding that the assessment of Agricultural income‑tax for the said years without holding a local enquiry in accordance with the direction given in Exh. 1 was violative of the fundamental principle of judicial procedure and as such the assessment is without jurisdiction and null and void. The Province of East Pakistan preferred an appeal, but the learned Subordinate Judge, agreeing with the view of the trial Court, dismissed the appeal. Mr. Md. Jani Alain, learned Senior Government Pleader, submits that when the plaintiff has admittedly Agricultural lands, the Agricultural Income‑tax Officer had jurisdiction to assess Agricultural income‑tax on the income of the lands which are cultivable and that if some of his lands, are in fact, patit, his remedy lies in appeal and proceedings under the Agricultural Income‑tax Act and not by way of a suit. The learned Govern ment Pleader further submits that the direction of the Assistant Commissioner of Agricultural income‑tax made in his appellate order with regard to holding of a local enquiry‑in subsequent years bets not the force of law and was not, therefore, binding on the Agricultural Income‑tax Officer. The direction given in the appellate order Exh. 1 appears to us to be an administrative direc tion to be followed by the Agricultural Income‑tax Officer in connection with assessment for subsequent years, but that direction as submitted by the learned Government Pleader, has not, the force of law, nor is it mandatory. We have looked into the Agricultural Income‑tax Act but do not find any provision which enjoins that in every case of assessment, it is essential that a local enquiry must be held in order to ascertain the nature of the lands. Mr. Ahmadur Rahman Khan, learned Advocate for the respondent, submits that since Agricultural income‑tax is assess able on income from lands yielding crops, it is required of the Agricultural Income‑tax Officer to ascertain the nature of the lands before making the assessment. In order to ascertain the nature of the lands, it is not necessary that there shall invariably be local enquiry. The nature of the lands can also be ascertained from record of rights, survey maps, title deeds, account books, collec tion papers and other documents, of the assessee. The Act does no where provide that holding of a local enquiry for ascertaining the nature of the lands is condition precedent to the making of an assessment. It is true that in many a case the holding of a local enquiry will be helpful in ascertaining the nature of the lands, but there is no mandatory provision in the Act to hold such enquiry. Hence we are of the view that non‑compliance with the direction in the appellate order Exh. 1 as regards local enquiry in connection with assessment for subsequent years did not affect the jurisdiction of the Agricultural Income‑tax Officer under the Act to assess Agricultural Income‑tax. The further contention of the learned Government Pleader is that the Civil Court has no jurisdiction to question the validity of the assessment made in this case by the Agricultural Income‑tax Officer. In support of this contention, our attention was drawn to section 65 of the Agricultural Income- tax Act which bars a suit to set aside or modify any assessment made under the Act. We, however, do not think that section will bar the Civil Court's jurisdiction if anything is done by the Agricultural Income‑tax Officer without jurisdiction or in excess of his jurisdiction or in violation of a mandatory provision of the Act. In other words, the Civil Court, notwithstanding section 65, has jurisdiction to call in question the assessment made by the Agricultural Income‑tax Officer if he has exercised jurisdiction not vested in him, or has done something in excess of his jurisdiction or has failed to comply with any mandatory provision of the Act. It appears that none of these things is satisfied in this case. That being so, the Civil Court has no jurisdiction to call in question the assessment made in this Case. In this connection Mr. Ahmadur Rahman Khan has drawn our attention to the following passage occurring in the judgment of the Privy Council in the case of the Secretary of State represent ed by the Collector of South Arcot v. Mask & Co. (44 C W N 709): "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the Statutory Tribunal has not acted in conformity with the funda mental principles of judicial procedure." We take that the law as enunciated by their Lordships of the Privy Council is the settled law, but what we think is that the learned Advocate is not correct in the interpretation he wants to put on the said passage. According to the learned Advocate, the Agricultural Income‑tax Officer's failure to hold a local enquiry in compliance with the direction made in the appellate order is "violative of the fundamental, principles of judicial procedure." This was also the view taken by both the Courts below. We are, however, unable to accept it as correct. The last sentence of the said passage received the consideration of a Division Bench of this Court reported in 9 D L R 26 at page

31. In that case, the Division Bench held :‑ "In our opinion what is intended by the last sentence of the observation quoted above is simply this that where the Statutory Tribunal concerned has acted clearly beyond the scope of the powers vested in it by the Statute, the jurisdiction of the Civil Courts to examine into such cases is not taken away even if the Statute contains words purporting to exclude such jurisdiction." The Agricultural Income‑tax Officer, as already stated, has not exercised any jurisdiction not vested in him by law, nor has he exercised excessive jurisdiction. Again, he has not failed to comply with any mandatory provision of the Act. Hence, the cited decision of the Privy Council is of no assistance to the plaintiff assessee. In the facts and circumstances of this case, the assessee's grievance against the assessment, if any, could be redressed by having recourse to appeal or proceedings as provided in the Agri cultural Income‑tax Act and not by a suit. In this connection, certain pertinent facts have come to notice. In the assessment year 1947‑48, the Agricultural Income‑tax Officer took 50% of the plaintiff's lands to be patit and unfit for cultiva tion. This he did exactly in accordance with the view taken by the Assistant Commissioner of Agricultural Income‑tax in the appeal in respect of the assessment for the year 1946‑47, vide Exh.

1. As regards assessment for the years 1948‑49, 1950‑51, 1952‑53 and 1953‑54, it appears from the assessment orders Exhs. 2(a), 2(c), 2(d) and 2(e) that in the plaintiff's failure to appear and produce papers in spite of notice, the Agricultural Income‑tax Officer made assessment for those years to the best of his judgment which he was empowered to do under section 25(5) of Act. As regards the assessment for the year 1949‑50, it appears that the plaintiff appeared and produced some papers including khatians and map on the basis of which the total area of the patit lands of the plaintiff was found to be 60.85 acres. Thus it was possible to find out the patit lands of the plaintiff on the basis of papers without holding a local enquiry. Be that as it may, as the holding of a local inquiry is not obligatory under the Act, we think that both the Courts below were wrong in their view that the failure of the Agricultural Income‑tax Officer to hold local enquiry affected the validity of the assessment which he had otherwise jurisdiction to make. It appears that an objection with regard to limitation was taken by the defendant and an issue with regard thereto was fram ed in the suit. A suit like the present one does not appear to fall under any specific Article of Schedule II of the Limitation Act. Accordingly, the suit is governed by the residuary Article 120 of that Schedule in terms of which the limitation is six years from the date of accrual of cause of action.' The suit in respect of the assessment for the years 1947‑48 and 1948‑49, is, therefore, barred by limitation, the relevant assessment orders Exhs. 2 and 2(a) having been made more than six years before the institution of the suit. In the result, we allow this appeal, set aside the judgments and decrees of both the Courts below and dismiss the suit. Having regard to the point of law involved, we make no order as to costs. TALUKDAR, J.‑I agree. S. Q. Appeal allowed.