TaxTMI 
TaxTMI 
2001 (5) TMI 44
X X X X Extracts X X X X
X X X X Extracts X X X X
....Assam, has been challenged. By the aforesaid notice, the Agricultural Income-tax Officer, Assam, directed the petitioner-firm to submit the details of the allowances Statewise computing the same with reference to the Statewise export turnover and further required the firm to show cause as to why the 60 per cent. deduction allowed will not be added to the agricultural income for the assessment period between 1984-85 and 1988-89. The petition is also for a declaration that rule 5 of the Assam Agricultural Income-tax Rules, 1939, is ultra vires the Act and that the reassessment proposed is also barred by limitation. The notice reads as follows: "During the assessment proceeding of your company under the Assam Agricultural Income-tax Act, 19....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... respectively. Hence, the notice to the extent it relates to the assessment years 1984-85 and 1985-86 are ex facie barred. Reassessment of escaped income, if any, for the aforesaid two assessment years is not permissible because of delay in issuing the notice. That apart, Dr. Saraf questioned the vires of the Provisions incorporated in rule 5 of the Rules of 1939 enabling the State officers for recomputation of agricultural income from tea grown and manufactured in Assam. A detailed discussion of this issue seems to be redundant because the Supreme Court in a recent judgment in Assam Co. Ltd. v. State o f Assam [2001] 248 ITR 567; AIR 2001 SCW 1325, dealt with the same question and declared the proviso to rule 5 of the Rules as ultra vir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stablished principle that the power to make rules under an Act is derived from the enabling provision found in such Act. Therefore, it is fundamental that a delegate on whom such power is conferred has to act within the limits of the authority conferred by the Act and it cannot enlarge the scope of the Act. A delegate cannot override the Act either by exceeding the authority or by making provision which is inconsistent with the Act. Any rule made in exercise of such delegated power has to be in consonance with the provisions of the Act, and if the rule goes beyond what the Act contemplates, the rule becomes in excess of the power delegated under the Act, and if it does any of the above, the rule becomes ultra vires the Act. We have already ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... such attempt they can always recompute the agricultural income as contemplated under section 20D of the State Act. Therefore, the above apprehension is baseless and we notice it is only for this limited purpose that the proviso to section 49 of the Act is incorporated by the State Legislature. Having come to the conclusion that the proviso to rule 5 of the Rules to the extent stated hereinabove, is ultra vires the State Act, we are of the opinion that it is not necessary for us to go into the larger question of constitutional validity of the provisions of the State Act on the question of repugnancy which was argued on the basis of the presumption that the State Act has made provisions which run counter to the constitutional provisions a....