1. When does an order of assessment breathe into life? is the question for consideration. According to counsel for petitioner, it is when the order is communicated, and according to the Government Pleader, it is when the order is made.
2. Ext. P1 order of assessment, for the assessment year 1979-80 dated 1-3-85, is challenged as time barred. Pursuant to Ext. P1, a notice of demand Ext. P1(a) dated 3-6-85 was issued under S. 30 of the Agricultural Incometax Act. S. 35(2) of the Act, incorporating a rule of Limitation reads:
“Noorder of assessment under S. 18 or ofassessment or re-assessment 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”.
3. The assessment year is 1979-80. The income became, ‘first assessable’ on 1-4-79. The end of the year in which the agricultural income “was first assessable is 31-3-80”.
4. The end of five years therefrom, would be on 31-3-85. Ext. P1 dated 1-3-85, is thus within five years. Ext. P1(a) notice of demand was on 3-6-85, and beyond five years. Thus arises the question, when the order of assessment came into force.
5. According to counsel for petitioner, it came into effect, when communicated, in the form of demand under S. 30. He relies on precedent to support this contention. A Division Bench of this court in T.R.C 15 & 16 of 1981 held that “communication is essential for the order to become final and effective”. The Supreme Court in B.J Shelat v. State of Gujarat ((1978) 2 SCC 202 : AIR 1978 SC 1109) held that an order takes effect only on communication. Communication could be actual or constructive. The date when communication is made, is the date of communication, and not the date on which the communication is received. Sabyasachi Mukharji, J. (as His Lordship then was) in Mohendra, J. Thacker & Co. v. C.I.T (139 I.T.R 793) took the view that communication is a condition precedent to an order of assessment becoming effective. Another Division Bench of this court in Bhaskaran v. Add. Incometax Officer, Er-nakulam (47 I.T.R 334) after noticing the decision on the point observed:
“………where the rights of a person are affected by an order, and limitation is prescribed for the enforcement of the remedy.,………… the making of the order must mean either actual or constructive communication of the said order to the party concened”.
(emphasis supplied)
6. Counsel for petitioner submitted that communication of the order was only on 3-6-85 by Ext. P1(a), beyond five years, thus attracting the bar under S. 35(2).
7. In support the learned Government Pleader submitted that the need for communication is not postulated by S. 35 of the Act and that except where communica tion is made obligatory by the Statute, the order comes into force when it is signed. He relied on the decision in The Sales Tax Officer, Spl. Circle, Ernakulam v. Sudarsanam Iyengar (25 STC 252) to support this contention. The question considered in that case was whether proceedings initiated, during the course of a year, would be compliance enough with Rule 33 of the Travancore Cochin Sales Tax Rules. The rule permitted initiation of proceedings during any part of the year, and the court held that if proceedings were initiated within that span of time, it would be valid. In the instant case, there is a point which comes into sharp focus, from which limitation runs; and that point is the last day of the year in which the income was ‘first assessable’. The last day is 31-3-80 and limitation would run out on 31-3-85. That apart S. 30 itself postulates communication.
8. An order of assessment comes into force only when it is communicated. This is not, only by reason of S. 30, but also for a more fundamental reason, namely 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. At that stage the order is only unilateral in a sense and not irrevocable; it becomes bilateral or binding only on communication.
9. Ext. P1 order of assessment came alive only with Ext P1(a) and that was beyond the period of five years. There is no question of the order becoming effective by reason of the bar of limitation under S. 35(2).
10. Writ petition is allowed and Ext. P1 and all proceedings pursuant thereto, are quashed. No costs.
11. Allowed.