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PETITIONER: M/S.POOTHUNDU PLANTATIONS PRIVATE LTD.

       Vs.

RESPONDENT: AGRICULTURAL INCOME TAX OFFICER,CHITTOOR, KERALA STATE, AND

DATE OF JUDGMENT:       15/07/1996

BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) JEEVAN REDDY, B.P. (J)

CITATION:  JT 1996 (6)   601        1996 SCALE  (5)384

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SEN,J.      Leave granted.      This case  arises out  of an  order of rectification of mistake apparent  on the  face of record under Section 36 of the Kerala  Agricultural Income  Tax Act. The Section, as it stood at the material time, was as under:      "36. Rectification   af    mistake:      (1)   The   authority  which passed      an order  on appeal or revision may      at  any  time  within  three  years      from the    date  of    such  order      passed by  him on   appeal  or   in      revision,   and   the  Agricultural      Income   Tax Officer  may   at  any      time within  three years  from  the      date of  any assessment   or refund      order passed   by  him,  of his own      motion,  rectify      any   mistake      apparent from  the  record  of  the      appeal, revision,    assessment  or      refund, as  the case  may  be,  and      shall   within  the    like  period      rectify any. such mistake which has      been brought  to his  notice by  an      assessee:      The  short   question  in   this  case  is  whether  an Agricultural Income Tax Officer can rectify the order passed by his  predecessor  in  office,  on  the  ground  that  the assessment order was passed by wrongly construing Section 12 of the Kerala Agricultural Income Tax Act. Section 12 before its amendment stood as under:      "12. Carrying   forward  of  loss:-      Where any person sustains a loss in      agricultural income   in  any  year      the loss  shall be  carried forward

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    to the  following year  and set off      against the  agricultural    income      for  that year  and if it cannot be      wholly so   set  off, the amount of      loss  not  so  set  off,  shall  be      carried   forward to  the following      year and  so on,  but no loss shall      be carried  forward for  more  than      six years."      There can  be no  doubt that  only an apparent error of fact or  law can  be rectified by an officer. If the mistake of law  has to  be established  by construing the words of a section to  find its  proper meaning,  then  such  an  error cannot normally  be a rectifiable error under Section 36. If two views are possible, then obviously the error will not be an error apparent from the record.      It is,  however, well-settled that if the Supreme Court has construed the meaning of a section, then any decision to the contrary  given by  any other authority  must be held to be erroneous  and such  error must  be treated  as an  error apparent on the record.      In the  instant case,  on the  strength of  decision of this Court  in the case of Anglo-French Textile Company Ltd. v. Commissioner  of Income Tax, Madras (1953) 23 ITR 82, the Assistant Appellate  Commissioner took  the  view  that  his predecessor had  committed  an  apparent  error  of  law  in allowing carry  forward of  losses  in  the  computation  of agricultural income tax under the Kerala Agricultural Income Tax Act.  The question  is whether  Section 12 of the Kerala Agricultural Income  Tax Act  must  be  interpreted  in  the manner in which this Court has interpreted Section 24 of the Indian Income  Tax Act.  This is  not an  easy  question  to answer. In  fact, the  learned Single Judge before whom this question was  raised in  the writ petition before the Kerala High Court  referred the  question to  a  larger  Bench  for decision. This  very fact  goes to  show that this was not a rectifiable error  apparent on  the record  of the case. The learned Single  Judge of the Kerala High Court felt that the question should be examined by a larger Bench.      Moreover, Section  24 of  the Indian Income Tax Act and Section 12 of the Kerala Agricultural Income Tax Act are not identically worded.  Even if it can be established by a long process of reasoning that the meaning of the two sections is the same,  the alleged mistake committed by the Agricultural Income Tax  Officer cannot  be treated as a mistake apparent on the record.      Section 24  of the Indian Income Tax Act, 1922 provided for setting  off of  losses incurred  under one head against income computed under any other head. Under Section 6 of the Indian Income  Tax Act,  income had  to  be  computed  under various heads.  If an assessee incurred loss under one head, he was  entitled to set it off against income computed under any other  head. If  the entire loss could not be set off in any year,  the balance, if any, had to be carried forward to the next  year. It  was held  by this  Court in  the case of Anglo- French  Textile Company  Ltd. (supra) that before any question of  set off  could arise,  there must be (1) a loss under one  or more  of the heads mentioned in Section 6, and (2) income, profit or gain under some other head.      The case of the assessee before us is that the ratio of this judgment cannot possibly apply to the Kerala Act on the ground that  the Kerala Act was concerned with only one head of income  (agricultural income). Here, there is no question of setting  off of  any loss arising out of any head against any income under another head. The scope of the two Acts and

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the content  of the  two sections  are materially different. The  judgment  of  the  Supreme  Court  rendered  under  the provisions of  the Indian  Income Tax  Act, 1922  could  not straightaway be  applied to  an assessment made under Kerala Agricultural Income Tax Act.      We are  of the view that there is considerable force in the contention of the assessee. If any error had at all been committed by the Agricultural Income Tax Officer, it was not an error apparent on the record. The judgment of the Supreme Court explaining  the provision  of Section 24 of the Indian Income Tax  Act, 1922  cannot  be  applied  straightaway  to interpret Section  12 of  the Kerala Agricultural Income Tax Act. It  is not  necessary for  us in  this case  to examine Section 12  in depth  to decide the question whether it will have to be given the same meaning as was given to Section 24 of the  Indian Income  Tax Act,  1922 in  the case  of Anglo French Textile  Company Ltd.  (supra), but suffice it to say for this case that it is not an error of law apparent on the record.      In that  view of the matter, the appeal is allowed. The judgment and  order passed  by  the  High  of  Kerala  dated 8.10.1993 is  set aside. The impugned order of rectification passed by  the Assistant Appellate Commissioner, pursuant to the notice  dated 4th August, 1984 under Kerala Agricultural Income Tax Act, is also vet aside.      There will be no order as to costs.