Judgment

HEGDE, J.:- These are appeals by special leave from the decision of the High Court of Kerala. The questions of law arising for decision in these two appeals are identical. Therefore, it would be sufficient if we set out the facts of the case in Civil Appeal No. 2569 of 1969. The respondent in that appeal is ex parte but the respondent in Civil Appeal No. 2570 of 1969 is represented by Mr. Sardar Bahadur. Hence the opposing view points on that question have been fully debated before us.

2. Now coming to the facts of the case the respondent is the Manager of a Nambudri Illom. That illom was assessed to tax under the Kerala Agricultural Income-tax Act, 1950 (hereinafter to be referred to as the Act ) in respect of the assesment years 1958-59, 1959-60, 1960-61 and 1961-62. All the assessments were made on March 14, 1962.

3. Section 3 of the Act provides :

"Agricultural Income-tax at the rate or rates specified in the Schedule to this Act shall be charged for each financial year in accordance with and subject to the provisions of this Act, on the toal agricultural income of the previous year......"

Sub-sections (3) and (4) of that section as it stood on March 14, 1962 read as follows:

"(3) In the case of an undivided Aliyasanthana family or branch of Marumakkathayam tarwad including a Nambudiri family or a family like that of the Moothathu or any other class governed by the law applicable to Nambudiries consisting of more than five members and whose agricultural income exceeds six thousand ruppes, the tax shall be assessed at the average rate applicable to the share of the agricultural income due to five members of the family or to six thousand rupees, whichever is higher".

"(4) In the case of an undivided Hindu family consisting of brothers only or of a brother or brothers and the son or sons of a brother or brothers and whose agricultural income exceeds six thousand rupees, the tax shall be assessed at the average rate applicable to the share of income due to a brother or to six thousand rupees, whichever is higher".

"Explanation - For the purposes of this sub-section-

(a) the expresion share of income due to a brother means the portion of the total agricultural income of the family which would have accrued to a brother, if a partition of the assets had been effected according to law on the day before the assessment is made; and

(b) son includes a son s son."

4. Subsequent to the passing of assessment orders on March 14, 1962, Act XII of 1964 was passed by the Kerala Legislature. That Act amended sub-sec. (3) of the Act and omitted sub-section (4). That amendment came into force with effect from April 1, 1958. Amended sub-section (3) reads :

"In the case of a Hindu undivided family consisting of more than 5 members entitled to claim a share on partition and whose agricultural income exceeds six thousand rupees, the tax shall be assessed at the average rate applicable to the share of the agricultural income due to five members of family or to rupees six thousand whichever is higher".

5. The amendment was given retrospective effect.

6. Subsequent to that amendment, the Agricultural Income-tax Officer by having recourse to his power under Section 36 of the Act, corrected the assessments in accordance with the amended provision. Section 35 of the Act provides for bringing to tax the income that has escaped assessment or has been assessed at too low a rate. Section 36 empowrs the Agricultural Income-tax Officer to rectify the mistakes in an assessment order which are apparent on the face of the records. Under Section 35, the reassessment can be done only within three years of the end of the concerned financial year but under Section 36 the rectification can be made within three years of the date of the assessment. If the power exercised by the Agricultural Income-tax Officer can be held to have been exercised under Section 36, then all that we have to see is whether the powers exercised by the Agricultural Income-tax Officer were exer