Appeal No 306 of 1957
Appeal from the judgment and order dated April 28 1955 of the Allahabad High Court Lucknow Bench Lucknow in Civil Misc
Application No 59 of 1954
C B Agarwala C P Lal and G N Dikshit for the appellants
section P Sinha and B R L Iyengar for the respondent
July 28
The Judgment of the Court was delivered by 84 SHAH  J
Raja Syed Mohammad Saadat Ali Khan who will hereinafter be referred to as  the assessee  is the owner of Taluqa Nanpura in district Bahraich and Taluqa Mohammadi in district Kheri in the State of Uttar Pradesh
The legislature of the United Provinces enacted the United Provinces Agricultural Income tax Act Act III of 1949 authorising imposition of a tax on agricultural income within the State
By section 3 of the Act the liability to pay agricultural income tax and super tax at rates specified in the schedule therein was charged on the total agricultural income of the previous year of every person
By section 14 the Collector and the Assistant Collector were for the purposes of the Act declared to be the assessing authorities within their respective revenue jurisdictions
As originally enacted by section 24 the expression  Collector  was to have the same meaning as in the United Provinces Land Revenue Act 1901
By section 44 the Provincial Government was empowered to make rules for carrying out the purposes of the Act and in particular amongst others  to prescribe the authority by whom and the place at which assessment shall be made in the case of assessee having agricultural income in the jurisdiction of more than one assessing authority  By r 18 el 1a framed by the Government in exercise of the powers under section 44 it was provided in so far as it is material that subject to sub section
2 of section 14 an assessee shall ordinarily be assessed by the Collector of the district in which he permanently resides
The State Government of Uttar Pradesh the former United Provinces by Notification dated June 8 1953 appointed one K C Chaudhry under sub section 1 of section 14A of the United Provinces Land Revenue Act III of 1901 to be the Additional Collector in district Bahraich and authorised him to exercise all the powers and perform all the duties of a Collector  in all classes of cases 
Claiming to exercise the authority of the Collector tinder section 14 of Act III of 1949 the Additional Collector by order dated February 25 1954 assessed the assessee s net agricultural income at Rs 281110 10 3 and ordered him to pay Rs 136390 2 0 as agricultural income tax and super tax
85 The validity of this order was challenged by the assessee by an application under article 226 of the Constitution presented before the High Court of Judicature at Allahabad
The contention of the assessee that the Additional Collector of Bahraich was not an authority competent bylaw to assess the agricultural income tax under Act III of 1949 was upheld by the High Court
The High Court issued a writ of certiorari quashing the order of the Additional Collector because in its opinion where property of an assessee is situate in several districts the Collector as the assessing authority under Act III of 1949 exercises extra territorial jurisdiction but as K C Chaudury the Additional Collector was not invested with that extraterrestrial jurisdiction the impugned proceeding assessing agricultural income tax was unauthorised
The State of Uttar Pradesh obtained from the High Court leave to appeal to this court against the order quashing the assessment
On behalf of the State of Uttar Pradesh it is urged that an Additional Collector by virtue of section 14A of the United Provinces Land Revenue Act III of 1901 is competent to exercise all such powers and perform all such duties of a Collector in cases or classes of oases as the State Government may direct and the State Government having invested Mr Chaudhri the Additional Collector with authority to exercise all the powers and to perform all the duties of a Collector  in all classes of cases  that officer could exercise the powers of the Collector under Act III of 1901 including what the High Court called the  extraterritorial  powers
It is unnecessary to express any opinion on this argument because the legislature of the State of Uttar Pradesh has since the judgment delivered by the High Court in this group of cases amended the United Provinces Agricultural Incometax Act U P Act III of 1949 by Act XIV of 1956 giving retrospective operation to the amending provisions
By the amendment cl 4 of section 2 of the original Act has been substituted by two clauses cl 4 and cl
4 a and el
4 a enacts that the expression  Collector  shall have and shall be deemed always to have 86 the meaning as in the U P Land Revenue Act 1901 and will include an Additional Collector appointed under the said Act
By section 101b all orders made actions or proceedings taken directions issued or jurisdictions exercised under or in accordance with the provisions of the Principal Act or of any rule an framed thereunder prior to the amendment of that Act are to be deemed always to be as good and valid in law as if the amending Act had been in force at all material dates
By section 10 sub section 1a of the amending Act it is provided that in r IS of the U P Agricultural Income Tax Rules 1949 the expression  Collector  shall be deemed to have included an Additional Collector and it is enacted by sub section 2 of that section that where any question arose as to the validity or legality of any assessment made by an Additional Collector in purported exercise of the powers under section 14 or of the rules framed under cl
o of sub section 2 of section 44 of Act III of 1949 the same shall be determined as if the provisions of this amending Act had been in force at all material dates
By the amending Act the legislature has enacted in language which is clear and explicit that assessment proceedings held by an Additional Collector who is invested with the powers of a Collector under Act III of 1901 shall be deemed always to have been properly taken
This court is seized of an appeal from the order of the High Court quashing the assessment on the ground that the Additional Collector had no extra territorial authority to assess agricultural income tax
It is true that Act III of 1949 was amended after the High Court delivered its judgment but in dealing with this appeal we are bound to consider the amended law as it stands today and which must be deemed to have so stood at all material times and to give effect to it having regard to the clearly expressed intention of the legislature in the amended provisions
Accordingly we hold that the Additional Collector was competent to assess the liability of the assessee to pay agricultural income tax and super tax under the United Pro vinces Agricultural Income tax Act III of 1949
For the assessee it is contended that before the 87 High Court an application for review of judgment was submitted by the State Government under section 11 of the amending Act and the High Court having rejected that application and no further proceeding having been initiated in this court challenging the correctness of that decision it is not open to us to set aside the judgment under appeal
In support of this plea it is urged that an application for review of judgment is the only remedy available to a person aggrieved by a decision of a court or authority for rectification of an order inconsistent with the provisions of the amending Act and if for any reason that application for review is not filed or is filed and rejected it is not open to a court or authority exercising appellate powers against that decision to adjudicate the dispute in the light of the amending Act
Section 11 in so far as it is material provides  Where before the commencement of this Act any court or authority has in any proceedings under the Principal Act set aside any assessment made by an Additional Collector merely on the ground that the assessing authority had no jurisdiction to make the assessment any party to the proceedings may at any time within ninety days from the commencement of the Act apply to the court or authority for a review of the proceedings in the light of the provisions of this Act and the court or authority to which the application is made shall review the proceedings accordingly 
Relying on section 11 the State of Uttar Pradesh it is true did submit an application for review of the judgment of the High Court and the High Court rejected that application observing That section section 1 1 applies however only to cases in which the assessment has been set aside in any proceedings under the Principal Act
In the cases before us the assessment has not been set aside in any proceedings under the Principal Act but in exercise of the jurisdiction vested in this court under article 226 of the Constitution
These three petitions are therefore not maintainable    We need express no opinion on the correctness of 88 this view because in our judgment the contention of the assessee that for setting aside an adverse order inconsistent with the provisions of the amending Act of 1956 a proceeding for review under section 11 is the only remedy which is open to an aggrieved party is without force
A court of appeal in an appeal properly before it must give effect to the law as it stands if the law has at some stage anterior to the hearing of the appeal been amended retrospectively with the object of conferring upon the authority or tribunal of first instance from the order whereof the appeal is filed jurisdiction which it originally lacked and a provision for review like the one contained in section 11 of the amending Act does not affect the power of the appellate court to deal with the appeal in the light of the amended law
In the view expressed by us this appeal must be allowed
As the appellant succeeds relying on a statute which was enacted after the date of the judgment of the High Court we direct that there shall be no order as to costs
Appeal allowed


Summary:
The appellants failed to file their return within the prescribed time and on a notice issued under section 281a of the Indian Income tax Act 1922 to show cause why penalty should not be imposed on them they filed a written reply
Without affording them an opportunity of being heard as required by section 283 of the Act the Income tax Officer imposed a penalty on them
On appeal the Appellate Assistant Commissioner set aside the order and directed refund of the penalty
Thereafter the Income tax Officer issued a further notice giving an opportunity to the appel lants of being heard
The appellants objected to this notice and 72 contended that the Income tax Officer could no longer proceed to re assess the penalty in the absence of an express order of remand by the Appellate Assistant Commissioner whose order had become final
Held that where an order of imposition of penalty made by the Income tax Officer under section 281a of the Indian Incometax Act was vitiated not by any initial illegality but by one which supervened during the course of the proceedings and the said order was vacated on appeal the Income tax Officer was well within his jurisdiction in continuing the proceedings from the stage at which the illegality had occurred and could re assess the penalty though no express order of remand was made
Jos Chacko Poothokaran vs Income tax Officer Ernakulam Cir cle  not applied